                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

ESAD BABAHMETOVIC,

      Appellant,

v.                                    CASE NO. 1D14-2986

SCAN DESIGN FLORIDA INC/
ZENITH INSURANCE
COMPANY,

      Appellees.


_____________________________/

Opinion filed October 8, 2015.

An appeal from an order of the Judge of Compensation Claims.
Ellen H. Lorenzen, Judge.

Date of Accident: October 9, 2013.

Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, for Appellant.

William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A.,
Winter Park, for Appellees.



                        ON MOTION FOR REHEARING

PER CURIAM.

      This cause is before us on Appellees’ motion for rehearing and rehearing en

banc. We grant the motion for rehearing, withdraw our prior opinion issued May 1,
2015, and substitute this opinion in its place. We deny the motion for rehearing en

banc.

        In this workers’ compensation case, Claimant appeals an order of the Judge

of Compensation Claims (JCC) denying him a one-time change in authorized

treating physician, as permitted by section 440.13(2)(f), Florida Statutes (2013). For

the reasons set forth herein, we reverse the ruling.

                                    Background

        Claimant lifted a heavy box at work on October 9, 2013. His low back hurt,

so the Employer/Carrier (E/C) sent him to Fast Track Urgent Care and authorized

Fast Track to treat him. The provider at Fast Track diagnosed radiculitis and checked

the boxes on a Uniform Medical Treatment Status Reporting Form (Form DWC-25)

that indicated the “injury/illness for which treatment is sought” was “work-related.”

Fast Track also referred Claimant to Dr. Delgado, who first saw Claimant on

November 15, 2013. Dr. Delgado concluded Claimant had both a resolving lumbar

muscle sprain and, as a condition preexisting the date of the work accident,

degenerative disk disease. Dr. Delgado checked the same “work-related” boxes on

his DWC-25, but the same day he sent a letter to the E/C indicating the cause

“regarding the lumbar spine” was 60% the preexisting condition and only 40% the

“workplace injury.”




                                          2
      On November 27, 2013, the E/C issued a Notice of Denial (Form DWC-12)

stating, under the heading “denied benefits,” “total claim denied,” and, under the

heading “reason for denial of benefits,” that the “industrial accident” is not the major

contributing cause (MCC) of the need for treatment. Both parties agree that this form

was intended to be a denial of compensability – that is, a statement that there was

never a compensable injury here.

                                  The instant claim

      Despite the Notice of Denial, Claimant asked for a one-time change in

authorized treating physician. The E/C denied the one-time change, giving the same

reasoning given in the Notice of Denial: that the industrial accident was not the MCC

of the need for treatment. When the matter came before the JCC, the parties asked

the JCC to consider whether the work accident was the MCC of not only the need

for treatment, but also the “injury” – in other words, to determine compensability.

They also asked the JCC to consider whether Claimant was entitled to the one-time

change despite the E/C’s denial of compensability – in other words, whether a

claimant can receive a one-time change where there was never a compensable injury.

      The JCC drew several conclusions. The JCC stated, “[t]here must first be a

compensable accident and injury before an employee is entitled to any benefit

allowed in Chapter 440” – thus rejecting Claimant’s argument that he is entitled to

a one-time change without first having to prove he had suffered a compensable injury

                                           3
of any sort. The JCC found that “Dr. Delgado identified an injury from the accident

(a sprain) as well as a pre-existing condition (degenerative disc disease) which

combined to produce the potential need for medical care,” and that Dr. Delgado

opined the sprain was less than half of the cause of the “injury and need for care.”

(Emphasis added). The JCC then found both that “the accident was not the [MCC]

of the injury” and that “the accident was not the [MCC] of claimant’s need for

medical care.” Based on all of this, the JCC denied the one-time change.

                                     Analysis

      The JCC is correct that “[t]here must first be a compensable accident and

injury before an employee is entitled to any benefit allowed in Chapter 440” – with

one single exception: an advance payment under section 440.20(12), Florida

Statutes. See Lopez v. Allied Aerofoam/Specialty Risk Servs., 48 So. 3d 888, 889

(Fla. 1st DCA 2010). But the JCC erred in not recognizing the existence of a

compensable injury in this case. This error came about by the JCC’s conflating the

existence and cause of the injury – compensability – with the existence and cause of

the need for treatment. Compensability is a concept used to convey the idea that the

Florida Workers’ Compensation Law applies; it requires the presence of certain

elements described throughout chapter 440 by terms of art such as accident, injury,

arising out of work performed in the course and the scope of employment. See

generally Checkers Rest. v. Wiethoff, 925 So. 2d 348, 350 (Fla. 1st DCA 2006) (en

                                         4
banc) (explaining concept of compensability as “the occurrence of an industrial

accident resulting in injury”).

      Causation, in workers’ compensation, is established by MCC, and MCC is a

concept that can potentially apply at two different stages of a determination of

entitlement to benefits: work must be the MCC of a compensable injury, and also –

where (as here) there is a preexisting condition – the compensable injury must be the

MCC of the need for treatment. 1 Compare § 440.09(1), Fla. Stat. (2013) (requiring

employer to pay compensation or furnish benefits if employee suffers accidental

compensable injury “arising out of work performed in the course and the scope of

employment”), and § 440.02(36), Fla. Stat. (2013) (defining “arising out of” by

stating that injury “arises out of employment if work performed in the course and

scope of employment is the major contributing cause of the injury”), with

§ 440.09(1)(b), Fla. Stat. (2013) (providing that if compensable work injury

“combines with a preexisting disease or condition to cause or prolong disability or

need for treatment,” employer need provide compensation or benefits only to extent

injury “is and remains more than 50 percent responsible for the injury as compared


1
  This is the rationale underlying case law holding that “[o]nce compensability is
established, an E/C can no longer contest that the accident is the MCC of the injuries
at issue. It can only contest the connection between a claimant’s need for specific
treatment or benefits, and the industrial accident.” Engler v. Am. Friends of Hebrew
Univ., 18 So. 3d 613, 614 (Fla. 1st DCA 2009); see also City of Pembroke Pines v.
Ortagus, 50 So. 3d 31, 32 (Fla. 1st DCA 2010) (holding E/C must pay for treatment
as long as compensable condition remains MCC of need for treatment).
                                           5
to all other causes combined and thereafter remains the major contributing cause of

the disability or need for treatment”). Only the first of these MCC analyses factors

into a determination of compensability of the original injury.

      Here, the JCC found the sprain (the workplace injury) and the degenerative

disk disease combined to produce the need for treatment. But such facts do not

preclude compensability – they merely implicate the possible availability of

particular medical and indemnity benefits. See § 440.15(5)(b), Fla. Stat. (2013) (“If

a compensable injury, disability, or need for medical care, or any portion thereof, is

a result of aggravation or acceleration of a preexisting condition, or is the result of

merger with a preexisting condition, only the disabilities and medical treatment

associated with such compensable injury shall be payable under this chapter . . . .”).

On the facts present in this case, it was not disputed that the sprain otherwise met

the requirements of compensability (e.g., an injury by accident arising out of and in

the course of employment). Given these facts, the JCC should not have applied an

MCC analysis to determine the existence of a compensable injury, because there is

no evidence (nor allegation) that the sprain was caused by degenerative disk disease

or anything other than work.

      Because Claimant suffered a compensable injury and received treatment

therefor, he is entitled to a one-time change in treating physician as “an absolute

right” if he made a written request for such during the course of

                                          6
treatment. Providence Prop. & Cas. v. Wilson, 990 So. 2d 1224, 1225 (Fla. 1st DCA

2008). The E/C concedes that Claimant properly requested a one-time change; thus,

he is entitled to the one-time change he requested. We distinguish Falcon Farms v.

Espinoza, 79 So. 3d 945 (Fla. 1st DCA 2012), where this court reversed the award

of a one-time change, because in Falcon Farms there was no work-related injury at

all, only a finding that the claimant “presented no ‘persuasive medical evidence’ that

an injury arose out of employment,” which was not challenged on appeal. 79 So. 3d

at 946.

      For the foregoing reasons, we reverse the order on appeal and remand to the

JCC for the award of a one-time change under section 440.13(2)(f).

      REVERSED and REMANDED with instructions.

WOLF and RAY, JJ., CONCUR; BENTON, J., CONCURS WITH OPINION.




                                          7
BENTON, J., concurring in the judgment.

       “When an E/C becomes aware that a claimant has medical needs [of which a

compensable injury is the purported major contributing cause], it should either pay

for   them,    pay    and    investigate    under    section   440.20(4),     or   deny

compensability.” Bynum Transp., Inc. v. Snyder, 765 So. 2d 752, 754 (Fla. 1st DCA

2000). In the present case, the employer or its insurance carrier accepted the injury

as compensable, without reservation. This election was binding. The statutory “pay

and investigate rule” requires:

              Upon commencement of payment as required under
              subsection (2) or s. 440.192(8), the carrier shall provide
              written notice to the employee that it has elected to pay the
              claim pending further investigation, and that it will advise
              the employee of claim acceptance or denial within 120
              days.

§ 440.20(4), Fla. Stat. (2013) (emphasis added). In order to invoke the benefits of

the pay and investigate rule, an employer or its carrier must give notice it is relying

on the pay and investigate provision at or before “commencement of payment.” Id.

“A carrier that does not deny compensability in accordance with s. 440.20(4) is

deemed to have accepted the employee’s injuries as compensable . . . .”

§ 440.192(8), Fla. Stat. (2013) (emphasis added).

      In short, I join the judgment of the court on grounds the notice of denial

contesting the injury’s compensability came too late.



                                           8
