Greetings,
I had a trial yesterday on the issue of medical necessity of annual visits.
Often, claimants follow up annually only for the purpose of keeping the Statute of Limitations from expiring. This is one of the issues where you have to do a cost-benefit analysis of whether it is
better to let the visits occur and risk future exposure or incur the litigation expense. Factors to consider are the claimant’s age, the nature of the injury and the potential of future exposure.
The caselaw (below) indicates a claimant does not have an absolute right to annual follow ups, those visits must be medically necessary. If that is the issue, a conference with the authorized treating doctor to confirm their opinion is the best way to approach it. I am always available to discuss pros and cons.
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ECHEVARRIA v. LUXOR INVESTMENTS LLC (2015) No. 1D14–3540.
In this workers’ compensation case, Claimant appeals a ruling of the Judge of Compensation Claims (JCC) denying a follow-up appointment with his authorized neurologist for his compensable injuries. The JCC found that the Employer/Carrier met its burden to prove that the compensable injuries are not the major contributing cause (MCC) of Claimant’s need for the requested benefit. The JCC further found that “no further neurological treatment is medically necessary in this cause inasmuch as the industrial injuries no longer comprise the MCC for the requested follow-up.”
We affirm. We write only to respond to Claimant’s argument that as a matter of law his permanent impairment rating assigned for his compensable injuries entitle him to ongoing palliative treatment, even in the absence of any medical testimony establishing a need for treatment. Neither the relevant statutory provisions within chapter 440, nor our case law, establish such an entitlement in the absence of evidence of medical necessity for the treatment, defined in part as “appropriate to the patient’s diagnosis”—the diagnosis being the compensable injury. See § 440.13(2)(a), Fla. Stat. (2006) (requiring employer to furnish medically necessary care); § 440.13(1)(l ), Fla. Stat. (2006) (defining “medical necessity”). Our decision in Homler v. Family Auto Mart, 914 So.2d 1071, 1073 (Fla. 1st DCA 2005), states: “The law is clear that once a claimant establishes a PI [permanent impairment], he or she is entitled to ongoing palliative care for the condition.” But this court also recognized that evidence of medical necessity was present in that case, stating that “the medical testimony and reports reflect that claimant has a continuing need for palliative care of her compensable neck injury.” Id. Here, there was no such evidence to establish that Claimant had a medical necessity for palliative treatment.
We acknowledge that some permanent injuries do not require ongoing active treatment but may require periodic doctor visits to ensure that the compensable injury is not worsening or in need of further evaluations or treatment. Nevertheless, here, because Claimant did not establish that either periodic visits or further evaluations by his authorized doctor are appropriate for his compensable workplace injury, we affirm the JCC’s ruling. See Smith v. James Pirtle Constr. Co., 405 So.2d 290, 291 (Fla. 1st DCA 1981) (“Claimant asserts that, as a consequence of having had a compensable permanent impairment, he has an absolute right to a physician’s examination to determine if further medical care, either palliative or remedial, is necessary. We are referred to no such precedent and, absent any evidence from claimant or otherwise, we conclude the deputy correctly denied the motion.”).
Sincerely,
Morgan Indek | Managing Partner