By:

 

Mary Frances Nelson, Partner, Fort Myers

In the ever-changing landscape of Florida workers’ compensation, we often see a push by the claimants’ bar to have the benefits pendulum swing back towards them. In a recent Miami decision, the JCC may have helped this to happen. In the case of Luis Rodriguez v. Demetech Corp., OJCC Case No. 14-028630SMS, Judge Medina-Shore ruled in favor of the claimant on his motion to de-authorize and strike the opinions of a treating provider, and permitted the claimant to select the replacement. Please note this is not binding authority, as it is only a JCC decision, and will likely be appealed to the First DCA. It is, however, our duty to inform you of possible problems with medical authorizations in the event you receive a similar motion.

In April 2015, the claimant requested a one-time change in physician. The carrier timely authorized Dr. Warren Grossman, and informed the claimant of the appointment. When getting the appointment set, the carrier signed an agreement with the doctor allowing for payment of treatment in excess of fee schedule. When the claimant realized the doctor was getting paid in excess of the fee schedule, this motion proceeded under the authority of FS 440.13(14)(a),(b). Based on the evidence, the JCC ruled that the doctor’s receipt of fees in excess of those permitted by fee schedule was a violation of the statute, de-authorized the doctor, and struck any opinions associated with the treatment.

What should you take away? This may be yet another tactic from the claimant’s bar to shift control of the medical back towards the claimant. Unfortunately, it may also backfire, as we are faced with increasingly limited options for physicians who will even accept workers’ compensation patients, much less fee schedule. At this juncture, carriers are not bound by this ruling. Continue to handle medical authorizations as you have in the past. With that said, how can you protect yourself? FS 440.13(14)(b) permits a deviation from fee schedule if there is a written agreement between the doctor’s office and the carrier that provides a procedure to provide quality medical care to the claimant. The statute references considerations such as scheduling timely appointments, helping with return-to-work programs, speeding up reports, agreeing to be subject to UR, per-certification, or case management. If there is a provider who demands in excess of fee schedule, and the carrier has to sign a contract, consider adding terms to support these sorts of benefits. It is not a guarantee, but does show that the carrier is attempting to comply with FS 440.13.

As always, our attorneys are glad to help with such concerns and issues.

Mary Frances Nelson | Partner