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Churchill v. DBI Servs.

Florida Court of Appeals, First District
May 31, 2023
361 So. 3d 896 (Fla. Dist. Ct. App. 2023)


No. 1D21-3199


Cynthia CHURCHILL, Appellant, v. DBI SERVICES, LLC and Corvel Corporation, Appellees.

Michael J. Winer, Tampa, for Appellant. Keith R. Pallo, Jane E. McGill, Palm Beach Gardens, for Appellees.

Michael J. Winer, Tampa, for Appellant.

Keith R. Pallo, Jane E. McGill, Palm Beach Gardens, for Appellees.

Per Curiam.

In this workers’ compensation appeal, Cynthia Churchill challenges orders from the Judge of Compensation Claims (JCC) including a final order denying compensation. She claims error in the proceedings before the JCC including: 1) not being awarded attorney's fees for securing payment of certain medical bills which DBI Services (the Employer) and Corvel Corporation (the Carrier, and collectively with the Employer, the Employer/Carrier or E/C) at first denied; 2) denying compensability of her injuries; and 3) not requiring the E/C to designate a corporate representative for deposition. We reverse on these issues and so do not address other claims of error raised by Churchill.


Churchill worked for the Employer as a rest area attendant. Her job duties consisted mainly of cleaning restrooms, which required the use of various cleaning products, chemicals, and mixtures of them. She routinely used a blend of liquid hand soap, toilet bowl cleaner, bleach, and water. The products were mixed every day, by pouring each of the three chemicals and the water into a plastic container, but the specific quantities of each were never accurately measured. Churchill merely "eyeballed" the amounts.

On November 1, 2020, Churchill was in the normal course of her employment. When Churchill arrived, she set about to prepare the combination of cleaners she used to clean the restrooms, and discovered her container already contained a portion of the blue liquid she recognized as the toilet bowl cleaner. Churchill stated that when she added bleach to the mix, "it exploded in my face."

There was an immediate chemical reaction which foamed up and made a visible vapor that enveloped her face. A multi-colored foaming cloud of vapor came up from the container into Churchill's face and her eyes. She ran out of the restroom to get some air. She then went back in and got the jug, carried it outside and dumped it over the rail.

After the incident, Churchill immediately started choking and coughing, with tears running down her cheek. She experienced burning in her nose and dripping eyes. An ambulance was called to the scene, and she was taken to the hospital.

Upon admittance to the hospital, her symptoms were coughing, wheezing, and shortness of breath. Churchill was evaluated and diagnosed with the toxic effect of chlorinated hydrocarbon solvent and acute respiratory failure with hypoxia. She was hospitalized for five days. Churchill also underwent treatment with Dr. Luck, an authorized provider. Dr. Luck diagnosed Churchill with: "toxic effect of other specified gases, fumes and vapors"; "acute sinusitis"; "bronchitis and pneumonitis due to chemicals, gases, fumes and vapors"; "toxic pneumonitis"; and "acute toxic conjunctivitis."

Dr. Luck's office completed a DWC-25 uniform medical treatment/status report form for Churchill's November 12, 2020, visit reflecting the November 1st accident was the major contributing cause of Churchill's need for treatment and her injuries. Churchill was placed on sedentary work with restrictions such as answering phones or computer work because any task which involved excessive movement aggravated her shortness of breath. The E/C authorized follow-up care after Churchill reported worsening shortness of breath and feeling dizzy. Dr. Luck called an ambulance to transfer Churchill to the emergency department for her respiratory distress.

The Employer reported the claim to the Carrier, and the initial adjuster accepted the claim as compensable on November 13, 2020. The Carrier paid for prescriptions on November 10, 2020, and commenced payment of indemnity benefits on November 13, 2020. The E/C authorized follow-up treatment with a pulmonologist and an ophthalmologist, and paid indemnity benefits for the periods of November 9th to 15th and then from December 1, 2020, to February 7, 2021.

Not until January 8, 2021, over two months after the incident, did the E/C send a 120-day pay and investigate letter to Churchill to advise her that their acceptance of the claim was conditional. The 120-day pay and investigate letter was directed to Churchill and her attorney.

Next, the E/C sent a notice of denial on January 25th, 2021. Then, the E/C authorized testing and follow-up medical treatment on February 22, 2021. The adjuster testified the January notice of denial was issued in error, and another notice of denial was filed on February 24, 2021.

Churchill filed a petition for benefits (PFB) seeking compensability and continued medical care as recommended by her physicians. The E/C filed a response to the petition denying the claim because Churchill could not meet her burden of proof.

Churchill sought to depose a corporate representative of the E/C. She moved to require the E/C to designate a corporate representative as required by rule 1.310(b)(6), Florida Rules of Civil Procedure. The E/C moved for protective order seeking to prevent the designation. At a pretrial hearing, the JCC denied the motion to compel and granted the protective order.

The JCC stated at pretrial hearing that he did not believe rule 1.310(b)(6) applies in workers’ compensation proceedings. The JCC addressed Churchill's counsel, stating, "You don't need this stuff and you keep citing the rules of civil procedure. We got (sic) our own rules, Mr. Mossallati. We got (sic) rules of workers' comp procedure. There's (sic) things in workers’ comp that we have to prove that people in, you know, civil procedure world, in circuit court world don't care about and vice versa."

In the pretrial stipulation, the E/C partially changed their position and agreed to accept responsibility for payment of all medical bills and pay for all treatment through February 24, 2021. Churchill argued in the pretrial stipulation that the E/C waived or was estopped from denying compensability by the E/C's failure to comply with the pay and investigate provisions in sections 440.192(8) and 440.20(4), Florida Statutes. The claim proceeded to a final hearing.

Following the final hearing, in his final order the JCC undertook a full analysis of compensability under sections 440.02(1) and 440.09(1), Florida Statutes. The JCC found that the incident did not result in an injury caused by an exposure to a toxic substance. Churchill had contended that the claim was not an exposure case but an accident as defined by section 440.02(1). The JCC disagreed and determined Churchill did not meet her burden of proof supported by clear and convincing evidence as required for toxic exposure cases in section 440.09(1). The JCC did not rule on the Churchill's waiver or estoppel argument brought under sections 440.192(8) and 440.20(4), Florida Statutes. The JCC also did not rule on the issue of entitlement or the amount of attorneys’ fees on the conceded medical bills and did not reserve on that issue.

Because we reverse on other grounds, we do not address this holding by the JCC.

Churchill moved for rehearing. In the order on rehearing the JCC expressly denied Churchill's claim for attorneys’ fees. The JCC also denied the other issues raised by Churchill and stated, "With regard to the remainder of Claimant's argument, the undersigned agrees with and adopts EC's argument in their response to the motion." This appeal followed.

Standard of Review

Generally, the court reviews findings of fact for competent, substantial evidence and a JCC's interpretation of law de novo. Sullivan v. NUC02, LLC/Broadspire , 308 So. 3d 659, 662 (Fla. 1st DCA 2020).

Attorneys’ Fee for Success

A JCC's order denying entitlement to an employer/carrier paid fee will be reversed when the findings made by the JCC are not supported by competent, substantial evidence. See Neville v. JC Penney Corp ., 130 So. 3d 235, 235 (Fla. 1st DCA 2013). Churchill is entitled to recover a reasonable fee for her attorneys’ successful prosecution of some of her claims in the PFB. Section 440.34(3), Florida Statutes provides:

A claimant is responsible for the payment of her or his own attorney's fees, except that a claimant is entitled to recover an attorney's fee in an amount equal to the amount provided for in subsection (1) or subsection (7) from a carrier or employer:


(b) In any case in which the employer or carrier files a response to petition denying benefits with the Office of the Judges of Compensation Claims and the injured person has employed an attorney in the successful prosecution of the petition.

A workers’ compensation claimant's attorney has a right to be paid an attorney fee by an employer/carrier upon successful prosecution of a claim when more than 30 days has elapsed from the date the E/C received the petition and claimant successfully achieved acceptance and payment of the claim. Neville , 130 So. 3d at 235. Churchill's counsel succeeded in the prosecution of the PFB seeking medical benefits when the E/C acknowledged it would pay the medical bills at issue in the pretrial stipulation. Churchill's attorney secured these benefits for Churchill through the prosecution of a portion of an outstanding petition. The JCC should have reserved jurisdiction on the amount of attorneys’ fees to be awarded. See Sierra v. Metro. Protective Servs ., 188 So. 3d 863, 866 (Fla. 1st DCA 2015) ; Sears Termite & Pest Control v. Spearman , 417 So. 2d 292, 293 (Fla. 1st DCA 1982). We therefore reverse the order to require the JCC to determine the amount of fees for securing the payment of certain medical bills.

Churchill may have a right to additional attorneys’ fees following further proceedings on remand. Our reversal here does not impact any potential entitlement to more fees.

Pay and Investigate

As stated above, we apply a de novo standard of review to this issue which concerns a JCC's application of law. See McKenzie v. Mental Health Care, Inc./Summit Claims Ctr. , 43 So. 3d 767, 768 (Fla. 1st DCA 2010). Section 440.09(1), Florida Statutes (2020), directs, "The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensable injury or death arising out of work performed in the course and scope of employment." Section 440.20, Florida Statutes, puts time constraints on the E/C's obligation under subsection 440.09(1). For example, paragraph 440.20(2)(a) sets tight deadlines for carriers to pay installments of death and disability benefits, and subsections 440.20(6) and (8) enforce those deadlines with penalties and interest. Paragraph 440.20(2)(b) demands that carriers "pay, disallow, or deny all medical, dental, pharmacy, and hospital bills" within forty-five days of receipt (if properly submitted). And subsection 440.20(3) makes carriers "immediately" notify the injured worker whenever they start or stop paying indemnity. Subsection 440.20(4) requires that these timelines be followed even by E/Cs unsure about their liability and states:

If the carrier is uncertain of its obligation to provide all benefits or compensation, the carrier shall immediately and in good faith commence investigation of the employee's entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits as required under subsection (2) or s. 440.192(8). Additionally, the carrier shall initiate payment and continue the provision of all benefits and compensation as if the claim had been accepted as compensable, without prejudice and without admitting liability. 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. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation as required under subsection (2) or s. 440.192(8) waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period. The initial provision of compensation or benefits, for purposes of this subsection, means the first installment of compensation or benefits to be paid by the carrier under subsection (2) or pursuant to a petition for benefits under s. 440.192(8).

Subsection 440.192(8), cited in subsection 440.20(4), sets the procedure for E/Cs once they receive a PFB and echoes that obligation: the Legislature gives carriers just two weeks to either "explain [their] justification for nonpayment" or to "pay the requested benefits," and then invites uncertain carriers to follow the procedures in subsection 440.20(4).

Because an employer/carrier's response to a PFB can only be to accept financial responsibility—equivalent to paying—or to deny, subsection 440.192(8) gives a carrier only two options up front: pay or deny. And subsection 440.20(4) gives only one option up front: pay. So, uncertain carriers must pay.

While they pay, subsection 440.20(4) instantly imposes on them another responsibility: to investigate. So, the judicially coined phrase "pay, pay and investigate, or deny" remains an accurate description of an adjuster's potential choices when faced with a request for benefits. See e.g. , Bynum Transp., Inc. v. Snyder , 765 So. 2d 752, 754 (Fla. 1st DCA 2000). But how is a claimant who receives those benefits to know if an employer/carrier has chosen to "pay and investigate" or simply to pay outright?

Uncertain carriers have yet another statutory obligation under subsection 440.20(4): to send a so-called "120-day letter." Without that letter, a claimant would not know to preserve evidence for potential litigation of entitlement to benefits, litigation which the Legislature intended to eliminate. See § 440.015, Fla. Stat. (communicating legislative intent to create "efficient and self-executing system"). Without a pay and investigate letter, then, the E/Cs who have furnished benefits are "deemed to have accepted the employee's injuries as compensable" or to have "waive[d] the right to deny compensability unless [they] can establish material facts relevant to the issue of compensability that [they] could not have discovered through reasonable investigation within the 120-day period." §§ 440.192(8), 440.20(4), Fla. Stat. We hold that an E/C's election to delay their decision about compensability by "paying and investigating" requires written notice per subsection 440.20(4). The letter does not start the 120-day period, "initial provision of compensation or benefits" does. See § 440.20(4), Fla. Stat. But only the letter invokes the right to rely on the "pay and investigate" statutory mechanism.

And only a timely letter will suffice. Section 440.20 again sets the schedule: the letter is due "[u]pon commencement of payment." § 440.20(4), Fla. Stat. Although "upon" is not defined in chapter 440, we understand this to mean either at the time of making the payment or as soon thereafter as reasonably practicable. See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 2519 (1993) (defining upon to mean "immediately following on : very soon after"). "Upon" cannot be read to mean "after allowing up to 120 days" of investigating.

Because the E/C control the furnishing of benefits, the E/C are the first to know whether and when payment will commence and are in the best position to dispatch the letter with haste. See Babahmetovic v. Scan Design Fla. Inc. , 176 So. 3d 1006, 1009 (Fla. 1st DCA 2015) (Benton, J., concurring) (quoting § 440.20(4), Fla. Stat.) ("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.’ "). Thus, to show that their provision of benefits was not a wholesale acceptance of compensability, the E/C have the burden to prove that they gave the injured worker written notice in accordance with statute.

Applying the law to the facts here shows that the E/C did not give Churchill written notice as required by section 440.20(4) "upon commencement of payment." The record cannot support a contrary finding.

Given that the record is clear on the dates under section 440.20(4) of the "initial provision of compensation or benefits" by the E/C as well as when the E/C "provide[d] written notice to the employee that it has elected to pay the claim pending further investigation," we can resolve this issue rather than remanding for additional findings. Cf. Sierra , 188 So. 3d at 868 (remanding "for additional findings" where "the JCC failed to make sufficient findings of fact and conclusions of law concerning the application of subsection 440.20(4)").

Churchill's accident happened on November 1, 2020, an ambulance took her to a hospital, and the hospital admitted her. The E/C requested "hospital/medical records" from the hospital on November 3, 2020; made their first medical payment (for prescriptions) on November 10, 2020; made their first disability payment (for temporary total disability) on November 13, 2020; and paid for the initial ambulance ride on December 23, 2020. Thus, payment commenced on November 10, 2020. But the E/C did not provide written notice that they were invoking "pay and investigate" under section 440.20(4) until January 8, 2021. They then denied compensability by mistake on January 25, 2021, and after more medical tests denied compensability on February 24, 2021. Fifty-nine days between commencement of payment and written notice invoking "pay and investigate" is too long a period to be "upon commencement of payment," and we hold that such a delay is not compliant with the requirements of section 440.20(4).

Finally, we distinguish as dicta the following statement in Checkers Restaurant v. Wiethoff , 925 So. 2d 348, 350–51 (Fla. 1st DCA 2006) (en banc):

[A]lthough section 440.20(4) directs the E/C to provide written notice when it has elected to pay the claim pending further investigation, an E/C's failure to provide such notice does not negate application of the section 440.20(4) waiver when the E/C does not deny compensability within 120 days of the initial provision of benefits.

In Checkers Restaurant , we "recognized that there is a distinction between the concept of compensability and a worker's entitlement to benefits as those terms are contemplated in section 440.20(4)." 925 So. 2d at 349 (citing North River Ins. Co. v. Wuelling , 683 So. 2d 1090 (Fla. 1st DCA 1996) ). The issue here is compensability, while in Checkers Restaurant the issue was entitlement to benefits if an accident was compensable.

Likewise, Bynum Transport , cited in Checkers Restaurant , is distinguishable. An issue in Bynum Transport was the applicability of the 120-day pay and investigate provision in section 440.20(4). Bynum Transport , 765 So. 2d at 754. There we held that "the E/C could not evade its obligation to investigate and decide either to continue making payments or to deny compensability, by simply ceasing to pay and remaining silent." Id .

We are not bound by dicta, only holdings. See Lewis v. State , 34 So. 3d 183, 186 (Fla. 1st DCA 2010) ("When a court makes a pronouncement of law that is ultimately immaterial to the outcome of the case, it cannot be said to be part of the holding in the case."). And the dicta in Checkers Restaurant conflicts with the plain language of section 440.20(4) requiring notice that the right to pay and investigate is being invoked "upon commencement of payment." We therefore reverse and remand with directions that the JCC treat the accident as compensable. "Other issues concerning the worker's entitlement to benefits remain subject to challenge, including the extent of the compensable injury and the causal relationship between the compensable injury and the condition for which the worker seeks benefits." Checkers Rest. , 925 So. 2d at 349.

Corporate Representative

Here, we again apply a de novo standard of review to a JCC's interpretation of law. Sullivan , 308 So. 3d at 662. Section 440.30, Florida Statutes, provides that depositions in connection with workers’ compensation proceedings may be taken in the same manner and subject to the same rules as in civil actions in the circuit courts of this state. It provides, in part:

Depositions of witnesses or parties, residing within or without the state, may be taken and may be used in connection with proceedings under the Workers’ Compensation Law, either upon order of the judge of compensation claims or at the instance of any party or prospective party to such proceedings, and either prior to the institution of a claim, if the claimant is represented by an attorney, or after the filing of the claim in the same manner, for the same purposes, including the purposes of discovery, and subject to the same rules; all as now or hereafter prescribed by law or by rules of court governing the taking and use of such depositions in civil actions at law in the circuit courts of this state.

§ 440.30, Fla. Stat.; see also Fla. Admin. Code R. 60Q-6.114(2) (stating that depositions of witnesses or parties may be taken and used in the same manner and for the same purposes as provided in the Florida Rules of Civil Procedure).

As noted by Churchill, a primary purpose in the adoption of the Florida Rules of Civil Procedure is to prevent the use of surprise, trickery, bluff, or legal gymnastics. Revelation through discovery procedures of the strength and weaknesses of each side before trial encourages settlement of cases and avoids costly litigation. The court has held that in Florida workers’ compensation cases, the "Florida Rules of Civil Procedure set forth the procedure by which the deposition of a corporate representative of a party may be noticed." CVS Caremark Corp. v. Latour , 109 So. 3d 1232, 1235 (Fla. 1st DCA 2013).

The JCC's determination that the Florida Rules of Civil Procedure have no application to depositions in a workers’ compensation case was incorrect. The plain language of the workers’ compensation rule and statute, as well as our decisions interpreting the same, make clear rule 1.310 ’s applicability here. This could have proven meaningful to Churchill especially given the JCC's determination that Churchill did not prove her "toxic exposure" claim.

Given our holding in the pay and investigate section above, Churchill may have no need to depose the Employer's corporate representative. But because she may wish to do so on remand, we cannot say that this issue is moot.

Rule 1.310 requires the corporation to reasonably prepare its representative to testify on the specified subject matters through documents, past employees, or other sources to enable the witness to "give complete, knowledgeable, and binding answers on behalf of the corporation." Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc. , 109 So. 3d 329, 334 (Fla. 4th DCA 2013) (quoting Marker v. Union Fid. Life Ins. Co ., 125 F.R.D. 121, 126 (M.D.N.C. 1989) ). Therefore, it was error to deny Churchill's request to have the Employer designate a corporate representative for deposition. If the designated corporate representative cannot answer questions about the designated subject matters, the corporation has violated its rule 1.310(b)(6) obligation and may be subject to sanctions by the court. Id .

For the above reasons, this case is


Bilbrey, Winokur, and Long, JJ., concur.

Summaries of

Churchill v. DBI Servs.

Florida Court of Appeals, First District
May 31, 2023
361 So. 3d 896 (Fla. Dist. Ct. App. 2023)
Case details for

Churchill v. DBI Servs.

Case Details

Full title:Cynthia Churchill, Appellant, v. DBI Services, LLC and Corvel Corporation…

Court:Florida Court of Appeals, First District

Date published: May 31, 2023


361 So. 3d 896 (Fla. Dist. Ct. App. 2023)

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