Medical Benefits

By: BRIAN B. BOLTONFlorida Bar Board Certified

Workers’ Compensation Law

Preeminent Lawyer,

Lexis Nexis Bar Register

Florida Super Lawyer, 2007-2011

Medical Benefits

F.S. 440.13 & F.S.440.134

Topics of Discussion• Medical Treatment• Independent Medical Examination (IME)• Expert Medical Advisor (EMA)• Attendant Care• Chiropractic Care• Managed Care

GenerallyMedical Care Must Be:

1. Reasonable

2. Medically necessary

3. Related to the accident

4. Performed by a licensed physician per 440.13(1)(d) and certified by DFS (Also known as the “The Department” (440.02(3) means the Department of Financial Services-not AHCA as of 7/1/08.)

Diagnostic Testing To Determine Cause Is

Compensable

In Chance v. Polk County School Board, 34 FLW D421b (Fla. 1st DCA, 2/23/09), The First District Court of Appeals held that diagnostic testing to determine the cause of symptoms, in this instance an MRI, was compensable even if the claimant had not established that an accident was the MCC of the claimant’s symptoms.

Hindrance To Recovery Theory

A claimant is entitled under this theory only to that treatment of a non-compensable condition if same is necessary to effectively treat the compensable accident and related condition(s). See City of Miami v. Korostishevski, 627 So. 2d 1242, 1244-45 (Fla. 1st DCA 1993)

Hindrance To Recovery Theory (Continued)

The hindrance to recovery theory makes treatment or assistance compensable only to the extent treatment or assistance is necessary for compensable injuries, not generally to keep a claimant healthy and safe. See Tyson v. Palm Beach County School Board, 913 So. 2d 105 (Fla. 1st DCA 2005).

Hindrance To Recovery Theory (Continued)

Treatment of the non-compensable condition does not necessarily require the payment of indemnity when the non-compensable condition is being evaluated and/or treated.

Hindrance To Recovery Theory (Continued)

Payment of Indemnity only if accident caused compensable injury-F.S.440.09(1)The employer must pay compensation or furnish benefits required by this chapter ifthe employee suffers an accidental compensable injury or death arising out of work performed in the course and the scope of employment.

Abnormal Findings Not Enough

(16) STANDARDS OF CARE.--The following standards of care shall be followed in providing medical care under this chapter:

(a) Abnormal anatomical findings alone, in the absence of objective relevant medical findings, shall not be an indicator of injury or illness, a justification for the provision of remedial medical care or the assignment of restrictions, or a foundation for limitations.

Duty To Furnish Medical Care

440.13 (2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.--

(a) Subject to the limitations specified elsewhere in this chapter, the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require, which is in accordance with established practice parameters and protocols of treatment…

Carrier Chooses The Doctor

Butler v. Bay Center/Chubb Ins. Co., 947 So.2d 570 (Fla. 1st DCA 2006), the 1st DCA noted that Section 440.13, Florida Statutes (2005), grants the Employer/Carrier the initial right and duty to select the claimant's treating physician. 

Carrier’s Obligation To Designate The Doctor

To timely respond to a claimant's request, an E/C is not required to schedule an appointment with the newly authorized physician. See Dorsch v. Hunt, 15 So.3d 836 (Fla. 1st DCA 2009) (explaining E/C is not required to actually schedule an appointment to comply with its statutory duty to furnish medical treatment at claimant's request). The E/C is required to specify the name of the doctor. See Harrell v. Citrus County School Bd., 25 So.3d 675 (Fla. 1st DCA 2010).

Failure To Furnish-Claimant Chooses

The claimant may only obtain initial treatment with the physician of his own choosing "after the E/C fails to provide initial treatment or care within a reasonable time after the claimant's specific request has been made known to the E/C."  See Section 440.12(2)(c), Florida Statutes (2005). See Butler v. Bay Center/Chubb Ins. Co., 947 So.2d 570 (Fla. 1st DCA 2006).

Failure To Furnish-Carrier Pays

(c) If the employer fails to provide initial treatment or care required by this section after request by the injured employee, the employee may obtain such initial treatment at the expense of the employer, if the initial treatment or care is compensable and medically necessary and is in accordance with established practice parameters and protocols of treatment as provided for in this chapter…

Failure To Furnish-Request By Claimant Without Referral

In Romano v Trinity School for Children, 43 So.3d 928, 930 (Fla. 1st DCA 2010), the 1st DCA held that the claimant was not required to obtain a referral for psychiatric care before unilaterally seeking treatment if the carrier failed to authorize such care after the claimant requested same.

Claimant Has Absolute Right To One Time Change

In Providence Property and Casualty v. Wilson, 33 Fla. L. Weekly D2251f (Fla. 1st DCA, 9/23/08), the JCC interpreted section 440.13(2)(f), Florida Statutes, as permitting a claimant an absolute right to a one-time change, “for any one accident”, in treating physician despite being released from care at MMI without restrictions and defense that the accident was no longer the major contributing cause of the injury or need for treatment.

One Time Change-Carrier Chooses

(f) Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident.

One Time Change-Claimant Chooses-5 Days

The carrier has 5 days to authorize the 1x change otherwise the claimant gets the option to choose the physician for the 1x change. See Fla. Stat. 440.13(2)(f).

Treatment Necessary For One Time Change

Butler v. Bay Center/Chubb Insurance Co., 947 So. 2d 570 (Fla. 1st DCA 2006), court held that before a claimant's right to a one-time change in physician arises, the claimant must have begun initial treatment with an authorized physician.

One Time Change Is An Absolute Right

Providence Prop. & Cas. V. Wilson, 990 So. 2d 1224, 1225 (Fla. 1st DCA 2008).

One Time Change Satisfied Upon Designating A Specific Doctor

Harrell v. Citrus County School Bd., 25 So.3d 675 (Fla.1st DCA 2010) holds that once a request for a 1x change is made, the carrier must do more than just acknowledge the claimant’s entitlement to same. Instead, the carrier must at least designate one specific doctor within 5 days even if the appointment is not set within that time frame.

One Time Change Is Not Synonymous With A Request For Specialty

Evaluation

In Castillo v. Total Source, Inc., 36 Fla. L. Weekly D1424e (Fla. 1st DCA, 6/30/11), the 1st DCA reversed a JCC’s finding that a claimant’s request for surgical evaluation constituted a 1x change. The court said that the specialist evaluation provision under F.S.440.13(3)(i) is different than F.S.440.13(2)(f) and that the former does not cause deauthorization of the prior doctor.

Authorized Evaluation Is Treatment

In Nunez v. Gallagher Bassett, the referral to a neurosurgeon resulting in an examination which included review of an MRI and a diagnosis was for the purpose of determining if surgery was warranted to treat claimant’s condition…and the 1st DCA held that “evaluation and diagnosis constitutes treatment”…33 Fla. L. Weekly D1707a (1st DCA, July 7, 2008)

No Need To Offer 3

…While the statute no longer requires an employer to offer a list of three alternative physicians, it does require an employer to offer an alternative physician upon a claimant's written request. See, Providence Prop. & Cas. v. Wilson, 990 So. 2d 1224  (1st DCA, 9/23/08)

Prior Doctor Is De-authorized Upon Written Notification

…Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become de-authorized upon written notification by the employer or carrier…Id.

Claimant Selects Doctor If Not Provided Within 5 Days

…The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary…

Referral For Care By Authorized Doctor – 3 Days To Reply

440.13(3)(d) A carrier must respond, by telephone or in writing, to a request for authorization from an authorized health care provider by the close of the third business day after receipt of the request. A carrier who fails to respond to a written request for authorization for referral for medical treatment by the close of the third business day after receipt of the request consents to the medical necessity for such treatment. All such requests must be made to the carrier. Notice to the carrier does not include notice to the employer.

Limitations On One Time Change

Claimant can waive the right to select. In Pruitt v. Southeast Personnel Leasing Inc., Case No. 1D09-4388 (Fla. 1st DCA, April 26, 2010), the appellate court held that where the claimant acquiesced to E/C’s selection of the 1x change despite E/C’s late authorization, the claimant has waived the right to select the doctor and cannot later select the doctor.

Specialty Care – 10 Days To Respond

440.13(3)(i) Notwithstanding paragraph (d), a claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, X-ray examinations, or special diagnostic laboratory tests that cost more than $1,000 and other specialty services that the Department identifies by rule is not valid and reimbursable unless the services have been expressly authorized by the carrier, or unless the carrier has failed to respond within 10 days to a written request for authorization…

De-Authorization Of A Treater

A physician may be de-authorized:

1. By IME showing failure to progress.

2. By DFS Pursuant to Review.

IME De-Authorization

440.13(2)(d) The carrier has the right to transfer the care of an injured employee from the attending health care provider if an independent medical examination determines that the employee is not making appropriate progress in recuperation.

De-Authorization IME Should Not Be The New Treater

In Fields v. Bayfront Medical Center, 15 FLWCLB 56 (Fla. JCC, St. Petersburg 2008), Judge Remsnyder held that the E/C should immediately re-authorize a de-authorized specialist who had been treating the claimant for 17 years because the E/C’s IME physician who made the determination that the claimant was not making appropriate progress in recuperation was also the physician to whom the treatment was to be transferred thus invalidating the doctor’s IME status. See Lombardi v. S. Wine & Spirits, 890 So. 2d 1128, 1129 (Fla. 1st DCA 2004)(IME is not a treater).

DFS De-Authorization440.13(8)(b) If the Department determines that a health care provider has engaged in a pattern or practice of overutilization or a violation of this chapter or rules adopted by the Department, including a pattern or practice of providing treatment in excess of the practice parameters or protocols of treatment, it may impose one or more of the following penalties:… 2. Deauthorization of care under review…

DFS Handles Claims By Medical Providers Against E/C

In Bryan LGH Medical Center v. Florida Beauty Flora, Inc., 36 So.3d 795 (Fla. 1st DCA 2010) the 1st DCA held that a hospital, Bryan LGH, had independent standing to bring a claim for payment for medical services it alleges are due from the E/C under the Workers' Compensation Law. See Rebich v. Burdine's, 417 So.2d 284 (Fla. 1st DCA 1982)(interpreting 1974 amendment to section 440.10(1) as creating independent standing on behalf of physician to bring an action against insurance company for payment of bills).

DFS Handles Claims By Medical Providers Against E/C

In Bryan LGH Medical Center v. Florida Beauty Flora, Inc., 36 So.3d 795 (Fla. 1st DCA 2010) the 1st DCA explained that under F.S. 440.13(14)(2006) “A health care provider may not collect or receive a fee from an injured employee within this state, except as otherwise provided by the chapter. Such providers have recourse against the employer or carrier for services rendered in accordance with this chapter.”

DFS Handles Claims By Medical Providers Against E/C

In Bryan LGH Medical Center v. Florida Beauty Flora, Inc., the Court further explained that the proper forum for disposition of this dispute is within the Department of Financial Services (DFS). See F.S. 440.13(7)(a), Fla. Stat. (2009) (providing health care provider's petition for payment of medical services “must” be filed with DFS).

DFS Handles Claims By Medical Providers Against E/C

In Bryan LGH Medical Center v. Florida Beauty Flora, Inc., the Court identified F.S. 440.13(11)(c), Fla. Stat. (2009) as providing that DFS has “exclusive jurisdiction to decide any matters concerning reimbursement”); Avalon Ctr. v. Hardaway, 967 So.2d 268, 273 (Fla. 1st DCA 2007)(holding JCC does not have jurisdiction over reimbursement dispute because jurisdiction is vested in another agency); see also Terners of Miami Corp. v. Freshwater, 599 So.2d 674, 675 (Fla. 1st DCA 1992)(en banc) (explaining July 1, 1990 legislative amendments vesting jurisdiction in Division of Workers' Compensation to resolve reimbursement disputes are procedural changes that divest JCC of jurisdiction to resolve such disputes.

DFS Has Jurisdiction When E/C Alleges Failure to File Forms

Cook v. Palm Beach County School Board, 36 FLW D107b (Fla. 1st DCA, January 13, 2011), The JCC lacks jurisdiction over claim when E/C does not deny medical bills but alleges that the medical provider failed to file same with E/C on proper forms.

Authorization Of Physicians Outside of Florida

According to Florida Admin. Rule 59A-29.002(d), the requirement for DFS certification does not apply to health care providers of medical services outside the State of Florida. See Arreola, 976 So.2d 612 (Fla. 1st DCA 2008)

Physicians Outside of the U.S.

According to AMS Staff Leasing, Inc. v. Arreola, a foreign physician (Mexican orthopedist) may render compensable services to workers' compensation claimants injured in Florida. See Arreola, 976 So.2d 612 (Fla. 1st DCA 2008)

Access To Medical Information440.13(4)(c)…upon the request of the employer, the carrier, an authorized qualified rehabilitation provider, or the attorney for the employer or carrier, the medical records, reports, and information of an injured employee relevant to the particular injury or illness for which compensation is sought must be furnished to those persons and the medical condition of the injured employee must be discussed with those persons, if the records and the discussions are restricted to conditions relating to the workplace injury…does not require the authorization of the injured employee.

Independent Medical Examination•What is an IME?

440.13(1)(i) "Independent medical examiner" means a physician selected by either an employee or a carrier to render one or more independent medical examinations in connection with a dispute arising under this chapter.

•What it’s not?–Although an IME may ultimately assist a claimant in securing medical treatment, it is not medical treatment. See Lombardi v. S. Wine & Spirits, 890 So. 2d1128, 1129 (Fla. 1stDCA 2004).

Disputes Justifying An IME

In any dispute concerning overutilization, medical benefits, compensability, or disability under this chapter, the carrier or the employee may select an independent medical examiner. F.S. 440.13(5)

IME-Reasonableness Standard Applies

The appellate court has held that there is a simple reasonableness requirement in the IME provisions that is subject to a JCC’s exercise of discretion. See Farm Stores Inc., v. Fletcher, 621 So. 2d 706 (Fla. 1st DCA 1993)(Timing, location, updated IME).

IME Before PFB?Maybe not – Karell v. Miami Airport Hilton, 668 So. 2d 227 (Fla. 1st DCA 1996) held that the JCC could not order an IME before a suit was filed and the 1st DCA reversed an order compelling an IME otherwise. Rule 60Q-6114(1) states that discovery may be had if authorized by statute before jurisdiction of the JCC is invoked. Since there is no specific provision allowing for an IME before a PFB as there is with the taking of a claimant’s deposition, an IME would not be allowed before a PFB is filed. An IME may be awarded if there is a dispute as to compensability, overutilization or medical benefits.

Independent Medical Examination

• “The employer and the employee shall be entitled to only one IME per accident and not one IME per medical specialty.” – F.S. 440.13(5)(a). However, Each party is entitled to an alternate examiner only if: 1. The examiner is not qualified to render an opinion upon an aspect of the employee's illness or injury which is material to the claim or petition for benefits

• “The party selecting the IME shall identify the choice of the independent medical examiner to all other parties within 15 days after the date the IME is to take place.” – Id.

Additional Independent Medical Examination Allowed

In Gomar v. Ridenhour Concrete And Supply,42 So.3d 855 (Fla. 1st DCA 2010), the District Court of Appeal held that claimant's challenge to the opinions of doctors placing him at maximum medical improvement (MMI) raised a new dispute for which he was entitled to seek a new or updated independent medical examination (IME). The appellate court explained that the only way to read these provisions harmoniously is to interpret section 440.13(5)(a) as allowing for one independent medical examiner per accident.

Additional Independent Medical Examination – Same Examiner

To hold that a party is allowed by statute to obtain an examination by its chosen independent medical examiner only one time, despite the fact that these issues may, and often do, arise long after the initial examination, would lead to a reductio ad absurdum. Thus, we hold that each party is entitled to an IME for each covered dispute during the life of a claim, so long as it is performed by the same examiner. Gomar v. Ridenhour Concrete And Supply,42 So.3d 855 (Fla. 1st DCA 2010).

Who Pays For The IME?

The party requesting and selecting the independent medical examination shall be responsible for all expenses associated with

said examination, including, but not limited to, medically necessary diagnostic testing

performed and physician or medical care provider fees for the evaluation…F.S. 440.13(5)

(a).

Can Claimant’s Attorney Attend A Defense IME?

In, McClennan v. American Building Maintenance, 648 So.2d 1214 (Fla. 1st DCA 1995), the 1st DCA found that an employer/carrier would have to demonstrate a valid reason to exclude a claimant's attorney from a workers' compensation examination. In civil cases, plaintiffs are generally entitled to have their attorneys and court reporters or videographers attend both physical and mental examinations unless there are good reasons for excluding them because of the adversarial nature of the matter. See, U.S. Sec. Ins. Co. v. Cimino, 754 So.2d 697, 701 (Fla.2000)(holding that insured seeking PIP benefits was entitled to have attorney or videographer present at examination absent valid reason for exclusion).

How To Exclude The Attorney From Attendance?

1. Specific justification in an affidavit by the doctor supporting that the presence will be disruptive.

2. Evidence that no other qualified physician can be located in the area who would be willing to perform the examination.

Thompson v. Awnclean USA, Inc., 849 So.2d 1129 Fla. 1st DCA 2003)(Court reporter was at issue here. And, the doctor improperly charged beyond what was allowed under the statute to conduct the IME with a court reporter present.).

Can Defense Attend Claimant’s IME?

Probably Not:“We find that the policy reasons behind permitting a claimant's attorney to attend such an examination, i.e., assistance and protection, do not support an E/C's counsel's attendance at an IME based upon a mere allegation that his or her presence is necessary to ensure against IME disruption.” See, Chavez v. J & L Drywall & Travelers Ins. Co., 858 So.2d 1266 (Fla. 1st DCA 2003)(Claimant’s privacy was discussed).

IME: Evidentiary Considerations

• “No medical opinion other than the opinion of a medical advisor appointed by the JCC, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the JCC.” –F.S.440.13(5)(e)

• Each party is bound by his or her selection of an IME and the opinions of the IME.

Limitations On Medical Testimony-History

The Russell v. Orange County Public Schools Transp., 36 So.3d 743 (Fla. 1st DCA 2010) Court explained that Section 440.13 was amended in 1993 to include subsection (5)(e), limiting medical opinion testimony to only EMAs, providers, and IMEs. See Ch. 93-415, § 17, Laws of Fla. The Governor's reform proposal of 1993 outlined the general goals of these amendments and included one of those goals as limiting a perceived “doctor-shopping” problem.

Testimony of an “Unauthorized” Provider

In Parodi v. Florida Contracting Company, Inc., 16 So. 3d 958 (Fla. 1st DCA 2009), the First District Court of Appeals held that when the E/C wrongfully denies medical care and the claimant is required to utilize the self-help provisions of section 440.13(2)(c), the JCC is not obliged to exclude the opinions of the doctors from whom Claimant was forced to obtain medical treatment. In this case, the JCC excluded the opinions of the prior treaters as being “unauthorized”. The appellate court reversed and held that the doctors were authorized by operation of section 440.13(2)(c), as they provided care during the E/C's wrongful denial of benefits. However, the Court has indicated that compensability must first be established before the opinion of an unauthorized provider may be admitted. See Brockington v. Pacesetter Personnel, 2010 WL 4793384 (Fla. 1st DCA, 11/23/10)(PCA).

Testimony of a Non-Medical Toxicologist is Inadmissible

In Stokes v. Schindler Elevator Corp, 36 Fla. L. Weekly D982c (1st DCA, 5/9/11), the 1st DCA

reversed the JCC’s reliance on a non-medical toxicologist who testified as to causation citing to a violation of the provisions of F.S.440.13(5)(e) and 440.09(1), Fla. Stat. (2007) (providing

occupational causation must be established to a reasonable degree of medical certainty and demonstrated by medical evidence only).

Testimony of a Non-Medical Toxicologist is Inadmissible (Continued)

“…This court has recently held that a JCC may not rely upon the opinion of a Ph.D. toxicologist

-- a non-physician -- in determining medical causation under the Workers' Compensation Law. See Witham v. Sheehan Pipeline Constr.

Co., 45 So. 3d 105, 108-109 (Fla. 1st DCA 2010) (“Because Dr. Harbison is not a medical doctor, he was not qualified to testify as to the medical cause of Claimant's condition in this particular

case.”).

Expert Testimony Standard

In Stokes v. Schindler Elevator Corp, 36 Fla. L. Weekly D982c (1st DCA, 5/9/11), the JCC held that the medical

doctors could not establish a causal relationship between an infection of the ankle and an infection in

the heart which caused death. In reversing, the 1st DCA explained that … “the JCC's conclusions that the

medical experts' opinions were legally infirm because of the lack of epidemiological studies linking

endocarditis to ankle wounds, and her conclusion that no evidence established that the fatal heart infection

stemmed from the ankle wound, misapprehends the use of expert opinion testimony in Florida courts.

Expert Testimony Standard (Continued)

When expert's opinion is based upon generally accepted scientific principles and methodology

reasonably relied upon by experts in relevant field of expertise, it is not necessary that expert's deductions based thereon and opinion also be generally accepted

as well. U.S. Sugar Corp. v. Henson, 823 So. 2d 104, 109 (Fla. 2002); See also Stokes v. Schindler Elevator Corp,

36 Fla. L. Weekly D982c (1st DCA, 5/9/11

Testimony of a Previously “Authorized” Provider Is Admissible

In Russell v. Orange County Public Schools Transp., 36 So.3d 743 (Fla. 1st DCA 2010), the 1st DCA held that the JCC’s exclusion of the opinions of a doctor who was once authorized but later unauthorized was error. The Court explained that to hold otherwise would promote gamesmanship. Specifically, interpreting section 440.13(5)(e) to preclude the admission of a de-authorized physician's medical opinion would contravene the purposes of the Chapter 440…this interpretation would enable an employer/servicing agency simply to de-authorize a physician at any time it does not want the opinion of that particular physician in evidence. Likewise, a claimant could preclude the admission of a physician's disadvantageous opinion by simply requesting his or her one-time change, thereby requiring the E/SA to de-authorize the current treating physician.

Expert Medical Advisor

• What is an EMA? • An EMA is a health care provider who

has been certified as an expert in a medical specialty to assist the Department and the judges of compensation claims within the advisor’s area of expertise.

When Is It Proper to Obtain An EMA?

If there is disagreement in the opinions of the health care providers, if 2 health care providers disagree on medical

evidence supporting the employee’s complaints or the need for additional medical treatment, or if 2 health care

providers disagree that the employee is able return to work, the Department may, and the judge of compensation

claims shall, upon his or her own motion within 15 days after receipt of a written request by either the injured

employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor. F.S.

440.13(9)(c)

The Disagreement Need Not Be From The Same Specialty

In AA Gutter Cleaning, Inc. v. Cesario,49 So.3d 281 (Fla. 1st DCA 2010), the disagreement was between an orthopedist and pain management specialist.

EMA: Evidentiary Considerations

• An EMA must complete an evaluation and issue a report to the Department or to the JCC within 15 days after receipt of all medical records. The EMA must also furnish a copy of the report to the carrier and to the employee.

• The opinion of the EMA is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC.

EMA: Evidentiary Considerations

Based upon F.S. 440.13(9)(c) and Court interpretation, an EMA’s opinion has a

“nearly conclusive effect.” Pierre v. Handi Van, Inc., 717 So. 2d 1115,1117

(Fla. 1st DCA 1998).

Case Discussion-ConflictThomas Stone v. Lynx, 2008 WL 90118 (Fla. 1st DCA,

January 10, 2008)• Claimant IME and defense IME conflicted. Defense IME testimony was based on a review of an MRI that he had not actually reviewed. Defense moved for an EMA.• Claimant sought to strike defense IME and therefore eliminate conflict in medical opinions.• JCC denied the Motion to Strike, found a conflict in evidence, ordered an EMA who testified in favor of Employer/Carrier. Defense verdict, appealed by Claimant, affirmed by 1st DCA.

Don’t Depend On The JCC Ordering An EMA Without A Timely Motion

In AIG v. Camacho, 975 So. 2d, 1219 (Fla. 1st DCA 2008), medical experts disagreed on issues but E/C attorney did not timely ask for an EMA. They tried to argue on appeal that the JCC had a duty to award an EMA without their motion. The DCA held that, while the judge has an independent duty to appoint an expert medical advisor when the evidence calls for it, failure of the JCC to do so does not constitute fundamental error, and may not be raised for the first time on appeal.

JCC Must Address The Issues-EMA Assists

Fitzgerald v. Osceola County School Bd., 974 So. 2d 1161 (Fla. 1st DCA 2008), involved a

workplace mold exposure and issues of causation.

1st DCA Holding-Fitzgerald

The EMA should assist the JCC in making factual findings based on conflicting medical

evidence.

Refusal Of Medical Care May Result In Loss Of Indemnity

BenefitsIn Lobnitz v. Orange Memorial Hospital 126 So. 2d 739 (Fla. 1961), the Florida Supreme Court held in 1961 that it is manifestly unjust and not in accordance with the law to place the liability of compensation on the employer when the employer had no opportunity whatever to reduce its liability by proper medical treatment. In that case, the claimant refused medical care for 6 months and indemnity benefits were denied.

More On Lobnitz

The Lobnitz medical refusal language was dicta but was supported in Hunt-Wilde v. Kitchen, 452 So. 2d 2 (Fla 1st DCA 1984), a case wherein wage loss was denied for the failure of a claimant to follow-up with recommended medical care. Id at p. 5. Lobnitz, was limited in Davis v. Marion County, 667 So. 2d 297 (Fla. 1st DCA 1995), a case wherein the Appellate Court stated in dicta that Lobnitz may be limited to instances wherein refusal of medical care causes the claimant to remain TTD.

More On Lobnitz (Continued)In State of Florida v. Wojick, 36 Fla. L. Weekly D2542a (Fla. 1st DCA, 11/22/11), the court said that a claimant always has the right to reject medical assistance, although the consequences may include forfeiture of certain workers' compensation benefits citing to 440.13(5)(d), Fla. Stat. (2006) (stating that an employee who fails to appear for an Employer/Carrier-ordered IME without sufficient notice or good cause is barred from recovering compensation for the period during which she refuses to submit to IME). This case indirectly affirms the Lobnitz holding .

Attendant Care

• What is Attendant Care?Per F.S. 440.13, “attendant care” means care rendered by trained professional attendants which is beyond the scope of household duties. Family members may provide nonprofessional attendant care, but may not be compensated for care that falls within the scope of household duties and other services normally and gratuitously provided by family members.

When is an injured worker likely to receive attendant care benefits?

If an injured worker’s injury prevents him or her from taking care of their daily needs, like bathing, dressing,cooking, and driving to the store to get medications, he or she may be entitled to attendant care benefits. 

The E/C shall not be responsible for such care until the written prescription for attendant care is received by the E/C, which shall specify:

– Time period for such care,

– The level of care required, and

– The type of assistance required.

Claimant’s Burden

• Claimants have the burden of proving the quantity, quality, and duration of attendant services claimed. See Orange County Sheriff's Dept. v. Perez, 541 So.2d 652, 654 (Fla. 1st DCA 1989).

Contemporaneous Prescription, Direction And

Control Not Necessary

In Rockette v. Space Gateway Support, 877 So.2d 852(Fla. 1st DCA 2004) , the Court held that the fact that the claimant's treating physician did not prescribe attendant care is not determinative of the claimant's right to recover such benefits. It is sufficient that the physician provided the necessary testimony at the hearing. See also IMC Phosphates Co. v. Prater, 895 So.2d 1263 (Fla. 1st DCA 2005).

Household Services Not Compensable Historically

The denial of attendant care benefits for purely household services dates back to case law of the 1960s. In South Coast Construction Co. v. Chizauskas, the Florida Supreme Court determined that an E/C was not required to furnish “housekeeping and related services” for a worker blinded as a result of a compensable accident. 172 So.2d 442, 444 (Fla.1965). Similarly, in Pan American World Airways, Inc. v. Weaver, the supreme court refused to allow compensation benefits for general household services even though the claimant was permanently and totally disabled. 226 So.2d 801, 802-03 (Fla.1969). The 1st DCA has followed these decisions and found household services non-compensable. See, e.g., Barkett Computer Serv. v. Santana, 568 So.2d 520, 521-22 (Fla. 1st DCA 1990); City of Leesburg v. Balliet, 413 So.2d 860, 861 (Fla. 1st DCA 1982).

Household Services May Qualify In Some Instances

Are there times when household services are awardable?

Yes-Although “the general rule [is] that ordinary services of a purely household nature are not usually compensable, especially when those services merely reflect a claimant's individual choice as to quality of life, numerous decisions of this court have established that there are a variety of situations in which household services may be awarded.” Diana v. HLS, 670 So. 2d 102 (Fla. 1st DCA 1996)(i.e. if necessary services overlap). But see Lykes v Chessher, 33 So. 3d 809 (Fla. 1st DCA 2010)(Household services not compensable).

Attendant Care-Applicable Law

The applicable statute for awarding compensation for attendant care is the statute in effect at the time the compensable care was given. See Socolow v. Flanigans Enters., 877 So.2d 742, 744 (Fla. 1st DCA 2004). However, in ABC Home Health v. Lawson, 36 So.3d 807 (Fla. 1st DCA 2010), the 1st DCA explained that the statute in effect for Claimant's date of accident expressly prohibited an award of services to assist an injured worker in performing “household duties.” This indicates that the law in effect at the time of accident governs the award of attendant care.

Qualifying Services Generally

Examples of the types of services that can constitute attendant care include bathing, dressing, administering medication, and assisting with sanitary functions. Sealey Mattress Co. v. Gause, 466 So.2d 399, 400 (Fla. 1st DCA 1985).

Supervisory Services Generally

It is erroneous for a JCC to award attendant care without regard to the actual services performed by a caretaker. See Bojangles v. Kuring, 598 So.2d 250, 251 (Fla. 1st DCA 1992). If care is not provided, it cannot be compensated. A logical consequence of this is that a caretaker cannot be compensated for time spent employed outside of the claimant's presence, even if the caretaker is considered “on call.” AT & T Wireless Services, Inc. v. Castro, 896 So.2d 828 (Fla. 1st DCA 2005).

Lawn Care ServicesAre lawn care services awardable?

Not if medical evidence shows no medical necessity. In ABC Home Health v. Lawson, 36 So.3d 807 (Fla. 1st DCA 2010), the 1st DCA reversed an award of lawn care service and explained that lawn care services were not awardable because no evidence established a medical need for Claimant's yard to remain well-maintained or that there would be adverse medical consequences if the yard is not maintained.

The Value of Nonprofessional Attendant Care

F.S. 440.13(2)(b), provides:1. If the family member is not employed, or is

providing attendant care during hours that he or she is not engaged in work, the per-hour value = federal minimum wage.

2. If the family member leaves their employment to provide attendant care, the per-hour value = per-hour value of former employment.

3. If the family member remains employed while providing attendant care, the per-hour value = per-hour value of the family member’s employment.

Cosmetic Or Reconstructive Surgery

In Perez v. UPS, 725 So. 2d 423 (1st DCA 1999), the Court held, we agree with the Supreme Court of Tennessee that "when reconstructive surgery or other treatment will be reasonably effective in improving a permanent disfigurement resulting from a work related injury, such surgery or other treatment is 'reasonably required' . . . even in the absence of vocational impairment.

Treatment Solely For Cosmetic Improvement

The fact some operative procedures are solely for the purpose of making the injured employee more presentable physically cannot reasonably be considered as outside the purview of the statute requiring additional medical treatment which may be awarded . . . as reasonably necessary. Perez, 725 So. 2d 424

Other Services/Devices

In ABC Home Health v. Lawson, 36 So.3d 807 (Fla. 1st DCA 2010), the 1st DCA affirmed an award of a hot tub and dental evaluation as CSE supported the medical necessity of same. The Court equated medical necessity with adverse medical consequences if the services or device were not provided.

Chiropractic Care• Effective 1/1/94, the Legislature placed the initial cap on

chiropractic treatment. Chiropractic care was limited to the first of 18 treatments or 8 weeks time beyond the date of the initial chiropractic treatment.

• Effective 10/1/03 Medically necessary treatment, care, and attendance does not include chiropractic services in excess of 24 treatments or rendered 12 weeks beyond the date of the initial chiropractic treatment, whichever comes first, unless the carrier authorizes additional treatment or the employee is catastrophically injured. – F.S.440.13(2)(a);

DISCUSSION: Why the amendments?

Managed Care• What is a managed care arrangement?

– It’s an arrangement where a healthcare provider has entered into a written agreement with an insurer to provide and to manage appropriate remedial treatment, care, and attendance to injured workers.

– By its broadest definition, managed care is a health care delivery arrangement in which a third party acts as a referee between the provider of care and the recipient of care.

– Under the managed care rules, the claimant has a right to select from the list of primary care physicians, and the E/C cannot limit the claimant’s selection to any particular physician.

When/Why did Managed Develop in Florida?

• In 1993, the Florida Legislature adopted major reforms to the Workers’ Comp law.

• Effective 1/1/97, all treatment under Workers’ Comp. was to be provided exclusively through Managed Care arrangements. – Effective 10/1/01, provision of treatment through Managed

Care is no longer required.• The move toward managed care was the direct result of

preliminary findings of a managed care pilot project that demonstrated significant potential for savings in a workers’ compensation setting. Such savings include:– reduction in the cost of medical claims, – reduced frequency of claims involving more than seven days of

missed work (i.e., lost-time claims),– reduced indemnity costs, and – shorter duration of disability

The Managed Care Plan

• An insured may not offer or utilize a worker’s compensation managed care arrangement until its managed care plan of operation has been approved by the Department and the insurer is authorized by the Department to offer or utilize a worker’s compensation managed care arrangement.

• The proposed managed care plan must include:– A statement or map of the service area– A description of the grievance procedure to be used.– A description of the quality assurance program

which assures that the health care services are reasonable.