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FS 440.13(2)(a) and the Right to Select Authorized Physicians

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By Sean M. Jordan, Associate, Orlando

An authorized treating physician will often refer a claimant to a specialist (e.g. orthopedist, neurologist) and name a specific physician (e.g., Dr. Smith). When this occrus, the employer/carrier must determine whether they have to authorize the named physician, Dr. Smith, or whether they can utilize their statutory right to select the physician. 

In Trejo-Perez v. Arry’s Roofing/Builders Ins. Grp., 141 So.3d 220 (Fla. Dist. Ct. App. 2014), the authorized treating physician, Dr. Alves, referred the claimant for a neuropsychological evaluation with a Spanish-speaking psychologist.  The E/C opted to authorize a provider of their choice to perform the recommended evaluation, and also made a Spanish-translator available for any office visits.  The claimant refused to attend the first scheduled visit, and subsequently filed a petition for benefits seeking authorization for a Spanish-speaking neuropsychologist.  Dr. Alves’ deposition was taken and he testified a Spanish-speaking psychiatrist and neuropsychologist were necessary only because there was a possibility a non-Spanish speaking physician could get the wrong information.  The JCC found Dr. Alves’ testimony did not satisfy the medical necessity requirement as laid out in 440.13(2)(a), Florida Statutes.  The claimant appealed the JCC’s decision to the 1st DCA, and argued the JCC ignored Dr. Alves’ unrebutted medical opinion testimony about the medical need for a Spanish-speaking psychologist to perform the neuropsychological evaluation. 

In its analysis, the 1st DCA held the question is not whether the testimony was unrebutted, but whether it was sufficiently persuasive to the finder of fact to establish medical necessity.  In workers’ compensation cases, a JCC’s determination of reasonable medical certainty depends on the substance of the evidence, rather than the use of the reasonable medical certainty terminology, or any other so-called ‘magic words’ by a medical witness. 

Unrebutted medical testimony can be rejected as long as there is a reasonable evidentiary basis for doing so. As the Florida Supreme Court explained in Wald v. Grainger, 64 So.3d 1201 at 1206 (Fla. 2011), a reasonable basis for the fact finder to reject medical opinion testimony “can include: conflicting medical evidence, evidence that impeaches the expert’s testimony or calls it into question, such as the failure of the plaintiff to give the medical expert an accurate or complete medical history, or conflicting lay testimony or evidence that disputes the claim.” (emphasis added).  Thus, unrebutted medical opinion testimony does not preclude the fact finder (the JCC) from rejecting the opinion, as long as there is some reasonable basis in the record that casts doubt on the testimony.  In other words, it is within the JCC’s authority to weigh the evidence, resolve evidentiary inconsistences, and judge the credibility of witnesses.

Therefore, if an authorized physician refers a claimant to a specialist, and names a physician, the claimant must present sufficient evidence to persuade the JCC that the referral to a specific doctor is not merely preferential, but rather medically necessary, as required by 440.13(2)(a), Florida Statutes.

Determining medical necessity is a multi-factored inquiry that emphasizes: (1) consistency with practice parameters in the profession; and (2) whether the medical service is widely accepted among practicing health care providers. See 440.13(1)(k), Florida Statues.  Thus, the claimant must present evidence showing use of the employer/carrier’s physician, and not the named doctor chosen by the referring physician, is incompatible with the prevailing practice parameters in the provision of health care services generally or specialty services specifically.  Or, in the alternative, whether the specialty field has adopted as a widely accepted practice, a requirement that the patient is entitled to a certain type of care. 

In Trejo-Perez v. Arry’s Roofing the claimant needed to show the field of psychiatry adopted as a widely accepted practice a requirement that patients are entitled to a primary language speaking physiatrist.  In the alternative, he must show that the use of a linguistically compatible interpreter is incompatible with prevailing practice parameters in the provision of health care services generally, or in the specialization services (e.g. psychiatry) specifically.  The claimant did not satisfy either or these requirements, and a fair reading of Dr. Alves’ and the claimant’s testimony showed a Spanish-speaking psychologist was merely preferable under the circumstances, but not medically necessary. 

The claimant’s bar has been litigating this issue more frequently as it attempts to find more paths to claim hourly fees. Best practices are always to try to mitigate any issues before the claimant has time to file a petition.  Therefore, if you see an authorized doctor refer a claimant to  a specific named doctor, set a conference with the authorized referring physician to determine if the referral is merely preferential or medically necessary.  This will help with shaping the narrative and decrease the filing of petitions.