First District Court of Appeal reverses because the workers’ compensation code does not authorize a Judge of Compensation Claims to strike a duly authorized treating physician because of a fee-related problem.

In this case, the claimant sought a one-time change in physician, which was granted by the employer/carrier. A new treating physician was timely authorized, and the claimant was immediately scheduled for an appointment. The new treating physician sent a form fee agreement to the employer/carrier, requesting an advance payment of $800 for the initial evaluation and treatment. This amount exceeded the base rate provided in the workers’ compensation fee schedule. Claimant’s counsel disagreed with the amount of the fee, and then the claimant and the doctor argued about videoing the appointment. Consequently, the claimant did not appear for her appointment. 

The appointment was later rescheduled. During this time, claimant’s counsel argued that a fee greater than that allowed by the fee schedule essentially meant that the treating physician was an independent medical examiner (IME) for the employer/carrier. The claimant also argued that she was entitled to a new one-time change physician. The employer/carrier and the physician amended the language of the fee agreement to align the $800 fee with the statutory provision that allows for fees in excess of the fee schedule. The Judge of Compensation Claims ruled that a physician seeing a claimant is not an authorized treating physician when the physician charges in excess of the maximum amount allowed by law. The judge also ruled that the claimant could choose her one-time change physician. The employer/carrier appealed.

The First District Court of Appeal pointed out that a judge’s jurisdiction does not extend to resolving disagreements about the terms of agreements between employers/carriers and treating physicians. In this case, the judge’s authority did not extend to striking a provider’s authorization because his or her rates exceed the scheduled rates. The court stated that this is an area where review and resolution are left to another entity, specifically the Department of Financial Services and the Agency for Healthcare Administration. The court cited Section 40.13 (13) (B) which does not prohibit the employer/carrier and physician from agreeing to higher rates. The statue specifically states: “[n]otwithstanding any other provision in this chapter, if a physician or healthcare provider specifically agrees in writing to follow identified procedures aimed at providing quality medical care to injured workers at a reasonable rate, deviations from established fee schedule shall be permitted.”

The court further noted that the statute does not provide claimants any recourse for litigating complaints before a Judge of Compensation Claims regarding reimbursements between employers/carriers and treating physicians.

Even though the First DCA reversed the judge’s final order, they recognized that the judge found that the form fee agreement initially used did not include the statutory language required to charge a higher-than-scheduled rate. However, the court emphasized that after learning of the problem, the employer/carrier and physician amended the fee agreement before the physician saw the claimant at the rescheduled appointment. The statute allows for process- and billing-related errors to be corrected on their own, but they also pointed out that even if the necessary language was omitted, the statute does not give authority to the Judge of Compensation Claims to strike the appointment of a physician and to appoint a new one. 

The claimant argued that a prior First DCA case, City of Rivera Beach v. Napier, 791 S.2d 1160 (Fla. 1st DCA 2001), authorized the judge to strike a one-time change physician and to grant the claimant her own choice. In Napier, however, the court only recognize that a Judge of Compensation Claims could lawfully discount the testimony of an IME physician who charged more than what the law allowed. In that case, the judge possessed jurisdiction to determine the admissibility of evidence, but it did not confer authority to strike a one-time change physician and to authorize a new one because of a claimant’s concern about the fees paid by an employer/carrier to the physician. The court closed the opinion by pointing out that the workers’ compensation code contemplates that disputes about fees will occur and fully addresses how they are to be resolved, but the chapter does not afford claimants the option of disqualifying the employer’s/carrier’s authorized physician in a proceeding before a Judge of Compensation Claims. 
 

_{What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2022 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}