By: Betsy Campo, Partner, Gainesville

Your eyes are not deceiving you; the number of pets sporting “emotional support animal” vests has been on the rise. In fact, according to researchers from the University of California at Davis, there has been a tenfold increase in the use of emotional support animals for psychiatric services in recent years.  This trend has now made its way into the realm of Florida Workers’ Compensation. 

In an Order dated September 14, 2018, Judge Humphries awarded a claimant reimbursement of $2,370.50 to cover the purchase price for her Bichon Frise-mix dog which she (ironically) named “Baby Sqweez”. Torain v. Duval County Schools/Johns Eastern, 16-003854RJH. 

In this article, I will explore the implications of this holding and answer some of the most pressing questions it has raised. For example, is an emotional support animal a compensable benefit under F.S. 440; and, should the industry expect a furry avalanche of emotional support animals claims?  Inevitably the claimant’s bar will continue to pursue this benefit, so I have included several tips to help you avoid the pitfalls that could  force you to send your claimants to Vanderpump Dogs in search of a court-ordered furry companion.

The Torain Claim

In Torain, the Claimant suffered a 2015 injury working as the acting dean at a Jacksonville middle school.  Her right shoulder was injured while breaking up a fight between students. The injury was accepted as compensable, and benefits were provided.  Three years after she was hurt, the Claimant moved to Georgia.  Shortly before her move, her authorized treating surgeon recommended a psychiatrist.  Due to the Claimant’s move, an unknown Georgia psychiatrist was authorized near her new home.  The psychiatrist, Dr. Jonathan Guy, diagnosed the Claimant with treatment-resistant PTSD and anxiety, and recommended  acupuncture, therapeutic massage, ketamine injections, suboxone, and an emotional support animal.  Dr.  Guy sent a November 30, 2017 letter to the carrier recommending these modalities. 

The adjuster received the letter from Dr. Guy on December 12 or 13, 2017. No response was provided to the doctor.  On December 22, 2017, the Claimant filed a Petition for Benefits for the emotional support animal.  The very next day, the Claimant purchased her dog, Baby Sqweez, for $2,370.50.   The E/C filed a Response to the PFB on January 2, 2018, stating that the emotional support animal was not medically necessary and was outside acceptable practice parameters.  Shortly thereafter, on January 18, 2018, the Claimant filed a PFB seeking reimbursement for the cost under the “Parodi” doctrine. See Parodi V. Florida Contracting Co., Inc., 16 So.3d 958 (Fla. 1st DCA 2009).

In order to investigate the need for the emotional support animal, the E/C obtained an IME with Dr. Michael Hilton, a psychiatrist. It was his opinion that an emotional support animal was not medically necessary. Based upon the conflict in opinions, the E/C then requested an EMA. The Claimant objected to the appointment of an EMA, arguing that medical necessity had been established by operation of law pursuant to Florida Statute, §440.13(3). In response, Judge Humphries ruled the EMA should proceed, but that Claimant’s objection should be heard at the final hearing.  Accordingly, the matter proceeded to an EMA with Dr. Pathak.  Dr. Pathak agreed with E/C’s IME that an emotional support animal was not medically necessary.

            Naturally, going into the final hearing with both the E/C’s IME and the EMA finding in its favor the E/C felt confident given the strength of the evidence.  However, at the final hearing, Judge Humphries agreed with the Claimant’s objection that the E/C waived its right to challenge the medical necessity of the emotional support animal.  Specifically, Judge Humphries ruled that, since the carrier failed to respond to the written request for an emotional support animal within 3 days or 10 days following receipt of the request, the E/C lost the right to challenge the medical necessity of that treatment modality.  Accordingly, the Judge awarded reimbursement to the Claimant for her furry companion.

The Judge did not state in his Order which 440.13 (3) provision was violated, but only determined that failure of the employer/carrier to respond in any way to the doctor’s written request for a medical benefit resulted in waiver of the right to argue medical necessity for that alleged medical benefit.  By so ruling, the JCC quashed E/C’s arguments that an emotional support animal is not a medical benefit contemplated under the statute. In support, the Judge stated “it was recommended by Dr. Guy, the carrier selected authorized treating physician, as a form a treatment.”   However, under this analysis it is still unclear which of the 440.13(3) provisions applies to Baby Sqweez.

Analysis of the Torain Holding

F.S. 440.13(3)(d) requires a “response by close of the third business day after receipt of the request for authorization ….or… authorization for referral for medical treatment”.    An emotional support animal clearly isn’t a “referral” for medical treatment, as that provision suggests referral to another doctor.  Is a letter recommending an emotional support animal then a “request for authorization”?  That is arguable.  But, authorization for what?  The doctor isn’t providing the dog to the claimant, so there isn’t anything for the E/C to technically “authorize”.  There isn’t a CPT code covering  payment for Baby Sqweez, and the HCFA form likewise doesn’t provide room for explanation for such a benefit.

Reading further, subparagraph (i) requires a response within 10 days to a written request for “specialists consultations, surgical operations, physiotherapeutic or occupational therapy procedures, x-ray examinations, or special diagnostic laboratory tests that cost more than $1,000.00 and other specialty services that the department identifies by rule”. Emotional support animals don’t fit into any of the enumerated benefits here, nor are they “defined or identified by department rule”. 

Emotional support animals are simply not mentioned anywhere in Florida Statute 440. In fact, a recent study by the Social Security Administration revealed that no private health insurance covers service animal expenses.  Accordingly, neither state nor federal medical coverage through Medicare or Medicaid cover the cost of a service animal. 

Since it is plainly evident the insurance industry has yet to acknowledge the emotional support animal as a medical benefit, that means the Torain case is one of first impression in Florida Workers’ Compensation. 

Breaking down the holding, Judge Humphries ordered the reimbursement of ‘Baby Sqweez’ because he found (1) an emotional support animal is treatment; and (2) the E/C waived the right to argue medical necessity pursuant to Parodi. Under Parodi, once a claimant (a) makes a specific request for medical care, (b) allows the carrier reasonable time to respond to that request, and (c) obtains medically reasonable and necessary care, then the care is authorized. Applying Parodi, Judge Humphries determined the Claimant purchased the dog 10 or 11 days after the written request for treatment was received by the E/C.  The Judge ascertained the Claimant allowed the E/C a reasonable amount time to respond to the request before incurring the expense of the animal.  Thus, the Judge ruled that Parodi is applicable and the Claimant was entitled to reimbursement.

The Judge of….Canine Claims?

            A Notice of Appeal has been filed by the E/C.  Also, at the time of writing this, there have been no announcements from any of the local the JCC offices that they will be combining facilities with their Counties’ Animal Services offices…

            We can only hypothesize what this ruling means for future claims.  For instance, if a doctor requests “an emotional support animal” for a Claimant, can the carrier then choose any animal to fulfill that purpose?  Federal regulations governing the legal status of “emotional support animals” are vague.  Unlike a “service dog”, an emotional support animal can be a member of any species, does not have to be trained to do anything, and can be a personal pet.  Will claim handlers start perusing local rescue groups for animals for Claimants in the future?  Would a reptile store be a better choice, given that pythons or even tarantulas have sufficed as emotional support pets for people?  What justification does the Claimant in this case have for purchasing a boutique dog breed that costs over $2,000.00?  If the award of the emotional support animal is appealed and affirmed, will the E/C be held responsible for the provision of future veterinary treatment for Baby Sqweez?  What about the cost of dog food, grooming, vaccinations, or flea treatment?  If emotional support animals become the norm in workers’ compensation, these issues only scratch (no pun intended) the surface of potential concerns that could arise.

‘Doggy Bag’ Takeaways

            For now, the lesson to be taken from the “Baby Sqweez” case is the importance of responding timely to written requests from authorized treating providers.  Even if the request is for something that might not appear to be within acceptable practice parameters, or if it is far-fetched (pun intended), it’s important to provide some type of response within either 3 or 10 days, depending upon the most likely applicable statutory rule. You don’t need to authorize the request or even specifically deny the request in your initial response.  A response stating that you are conducting an investigation into the requested item should suffice.  Without responding, however, you run the risk of losing your ability to challenge the medical necessity of that item.  Learn from this Baby Sqweez case and make sure to respond to all written requests by authorized treating providers promptly.  Otherwise, you risk your exposure potentially going through the “woof”!