In Florida, the Employer/Carrier has the duty to either provide transportation for medical appointments or reimburse the claimant for their mileage. The IRS just released their reimbursement rates for 2023, and I have received a few questions about what rate the E/C should be using. Well, it is not a clear answer, and here is why and how we got here:
- In 1964, the WC statute did not mention mileage or transportation at all. In the Mobley case (170 So.2d 41), the Florida Supreme Court stated that “travel expenses necessarily incurred in enjoying medical benefits provided by the Act are an incident of medical care” , and it is the duty of the E/C to provide medical care. However, because the Legislature did not provide a rate for mileage, “the reasonable cost of such travel expenses will have to be proved just as any other factual issue.”
- The FL Legislature then added language to the statute in 440.13(6) stating medical mileage was to be paid, and there was a statutory presumption that the rate should be what the State of Florida paid it’s employees.
- However, in 1994, the Legislature repealed that section, and the statute was again silent as to medical mileage or the rate.
- In 1996, in Sam’s Club v. Bair, 678 So. 2d 902 (Fla 1st DCA 1996), the 1st DCA again reiterated what the Mobley case had said in 1964, mileage is a part of the duty to provide medical benefits. This case did not address the mileage reimbursement rate however. The E/C’s just continued using the state employee mileage rate, which at that time was $.29. Arguably though, it was back to a case-by-case basis as in Mobley.
- In 2006, the state raised the rate paid to employees to $.445. The state then sent a memo to all the carriers stating if you use the state employee rate as your basis for your WC reimbursement, you should now use $.445. (and it remains at $.445 https://m.flsenate.gov/statutes/112.061)
So, where are we in the law? Well, the WC statute does not say specifically or presumptively to use the FL State Employee rate of $.445, and arguably we are back to Mobley where a claimant could prove a different rate is reasonable. The IRS rate for 2023 is $.655.
Until we get some judicial clarification, I would recommend continuing with $.445.
However, given the costs of litigation and attorney fee exposure, it should be evaluated to see what makes economic sense on a case-by-case basis. (Also, as an aside, in 2006, the 1st DCA also stated the claimant should get reimbursed for mileage to and from the pharmacy to fill prescriptions in Remington v. City of Ocala.)
As always, please let me know if you have any questions.
Morgan Indek | Managing Partner