Greetings, I had a request to do a Tip on 2nd opinions in Florida WC.
The current WC statute (since 10/1/2003) does not specifically say anything about 2nd opinions. (There may be a few employers out there that still utilize a Managed Care program from the 1990’s where there is a specific right to a 2nd opinion, but these are pretty rare nowadays).
The 1st DCA addressed the issue in Lombardi v. Southern Wine Spirits, 1D03-4061 (Fla. 1st DCA 2004), link below.
https://1dca.flcourts.gov/content/download/293624/opinion/Opinion_03-4061.pdf
In this case, the claimant filed a PFB for a 2nd opinion. The E/C denied the request because there was no specific right to a 2nd opinion listed in the medical benefits section of 440.13.
The 1st DCA disagreed and stated “we cannot categorically rule out instances where a second medical opinion would constitute “medically necessary remedial treatment, care, and attendance” under section 440.13(2)(a).”
The court noted there may be times when the nature of the injury makes a 2nd medical opinion medically necessary. Section 440.13(1)(m) defines “medically necessary” as: [A]ny medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient’s diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters.
The fact that a 2nd opinion was not specifically listed in 440.13 did not mean a claimant does not have the opportunity to demonstrate the medical necessity of a 2nd opinion. The DCA would not spell out situations when a 2nd opinion was warranted but stated:
“We are unable to define in advance the universe of possible situations where a second opinion would be medically necessary. We do, however, conclude that the claimant’s request for a second opinion presents a question of fact, similar to any other request under section 440.13(2)(a), Florida Statutes. The JCC must resolve such questions after an evidentiary hearing where claimant will bear the burden of demonstrating entitlement.”
Typically, in practice we have been requiring a referral from a doctor for a 2nd opinion, and even then, we need to confirm the medical necessity of that referral. In some instances, the doctors have said they just made the referral because the claimant asked, not that it was medically necessary. I would recommend discussing with defense before authorizing a 2nd opinion so as not to lose control of the medical.
Of course the claimant retains the right to schedule their own IME, but that is at the claimant’s expense while a 2nd opinion would be paid for by the E/C.
Sincerely,
Morgan Indek | Managing Partner