Greetings, it has long been an established part of the FL Workers’ Compensation law that we may have to provide authorized treatment for unrelated personal health conditions if those conditions prevent us from treating the compensable injury. This is the “hindrance to recovery” theory, and we commonly see it nowadays with smoking cessation, cardiac clearance, uncontrolled diabetes and weight loss.
While the hindrance theory is not specifically spelled out in the FL WC Act, it has been established in caselaw, where the courts have said this statute section applies (emphasis added):
440.13 (2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH.—
(a) Subject to the limitations specified elsewhere in this chapter, the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require……
Some cases in the early 1980’s established the basics of the hindrance to recovery. The E/C has to pay for treatment of a non-compensable injury if such treatment would not be required but for the existence of the compensable injury. It is the purpose of the treatment that determines whether or not the medical expenses are compensable. A claimant does have a duty to cooperate fully, and the E/C is not required to provide treatment forever in the absence of the claimant’s voluntary cooperation.
In 1992, the 1st DCA stated the hindrance to recovery theory makes treatment or assistance compensable only to the extent treatment or assistance is necessary for compensable injuries, not generally to keep a claimant healthy and safe. The claimant “is entitled under this theory only to that treatment of his [non-compensable] cancer necessary to effectively treat the [compensable] hernia.”
In a more recent case in 2014, the 1st DCA reiterated unless the purpose of the treatment of the unrelated condition is to remove a hindrance to treating the compensable condition, the doctrine does not apply.
So, let’s turn to today’s world, where it seems every other commercial on TV has some newly skinny celebrity hawking one brand or another of the GLP-1 weight loss injections. So far, I have heard of one case (not one of mine) where a physician recommended GLP-1 injections for weight loss as a hindrance to recovery.
If the purpose is the claimant simply needs to lose weight for overall health, that is not compensable. If the claimant is unable to undergo surgery because of the weight, then weight loss may be compensable under hindrance. BUT, it is the weight loss that is medically necessary, not the specific treatment of the injections. Historically we had authorized a weight loss program, such as Weight Watchers, and if the claimant was non-compliant we did not continue.
If the claimant is non-compliant with whatever clearance or hindrance that needs to occur, I would recommend informing the authorized treater and seeing if they put them at “temporary MMI” until such time as they obtain clearance.
Let the onslaught of questions on this one begin. I’m working on putting together a CEU on this topic.
Join us for the upcoming 4 HR law and ethics webinar and you can register with eg@eraclides.com
Check our website for upcoming FL, GA and TN webinars and events: https://eraclides.com/events/
Sincerely,
Morgan Indek | Managing Partner