A workers’ compensation judge may not disqualify a treating physician simply because the doctor’s prices exceed the Florida workers’ comp fee schedule, a state appeals court decided this week.
“In other words, providers aren’t categorically tainted by higher-than-schedule fees. And carriers and authorized providers may agree to reimbursements” per the schedule or according to mutually agreed-on rates, Florida’s 1st District Court of Appeal said in Palm Beach County School District and Sedgwick Claims Management vs. Frances Smith.
The court reversed the comp judge, Carol Stephenson, who had thrown out the physician and granted the claimant a second chance to obtain a new treating doctor for her injury. The Florida comp statute allows the employer/insurer to choose the treating physician, but the claimant can request a new doctor one time.
That happened in this case. Smith was injured in 2017 while performing a dexterity test on a school bus. She fell backward and landed on her tailbone, causing pain to her lower back and tailbone area, according to her petition for benefits.
After the employer/carrier assigned a physician, Smith requested a change. The insurer agreed and timely appointed a new physician. But it turned out that the doctor charged $800 – more than what is allowed by Florida’s fee schedule, which, incidentally, has not been updated in several years. The claimant’s attorney argued – and the comp judge agreed – that the higher reimbursement could prejudice the doctor and effectively made him an independent medical examiner hired by the insurance company.
Meanwhile, the carrier and the doctor restructured the fee agreement to comply with the law, which allows higher fees when physicians agree to follow certain procedures. Despite that, the comp judge sided with the claimant and allowed her to pick another doctor.
After Sedgwick and the school district appealed, the DCA found that the judge’s decision was not authorized by law.
“The workers’ compensation code provides no JCC process allowing claimants to disqualify their treating physicians because they are dissatisfied with the fee reimbursement arrangements between the physician and E/C (employer/carrier),” reads the appeal court decision, written by Judge Timothy Osterhaus.
A comp judge does not have jurisdiction over the terms of physician fee agreements, and at any rate, the employer had amended the agreement to comply with the law, the court said.
“Third, the statute gives claimants no recourse for litigating complaints before a JCC about the reimbursements passing between E/Cs and authorized treating physicians,” Osterhaus wrote. “Claimant’s view would seemingly grant her potentially unlimited ‘one-time’ changes for each billing miscue whenever she can show that a bill exceeded the scheduled rate for the appointment.”
The claimant’s lawyer cited a previous court ruling that allowed a comp judge to discount the testimony of an independent medical examiner who had charged more than what the law allowed. But the appeal court said that does not allow comp judges to authorize a new treating physician due to the claimant’s concerns about the fee.
The decision did not address attorney fees in the case.
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