A workers’ compensation judge cannot disqualify an attending physician simply because the doctor’s prices exceed Florida’s workers’ fee schedule, a state appeals court ruled this week.
“In other words, vendors aren’t categorically tainted by higher-than-expected fees. And authorized carriers and vendors may agree to refunds” on schedule or at mutually agreed rates, Florida’s 1st The District Court of Appeals said in Palm Beach County School District and Sedgwick Claims Management v Frances Smith.
The court overturned the comp judge, Carol Stephenson, who had expelled the doctor and granted the plaintiff a second chance to get a new treating doctor for his injury. Florida law allows the employer/insurer to choose the attending physician, but the claimant can request a new physician once.
It happened in this case. Smith was injured in 2017 while performing a dexterity test on a school bus. She fell backwards and landed on her tailbone, causing pain in her lower back and tailbone, according to her claim for benefits.
After the employer/carrier assigned a physician, Smith requested a change. The insurer agreed and appointed a new doctor in due course. But it turned out that the doctor charged $800 – more than allowed by Florida’s fee schedule, which, by the way, hasn’t been updated for several years. The plaintiff’s lawyer argued – and the competition judge agreed – that the higher reimbursement could harm the doctor and effectively made him an independent medical examiner hired by the insurance company.
Meanwhile, the carrier and doctor have restructured the fee agreement to comply with the law, which allows higher fees when doctors agree to perform certain procedures. Despite this, the comp judge sided with the claimant and allowed her to choose another doctor.
After Sedgwick and the school district appealed, the DCA concluded that the judge’s decision was not authorized by law.
“The Workers’ Compensation Code provides no JCC process for claimants to disqualify their treating physicians because they are dissatisfied with fee reimbursement agreements between the physician and E/C (employer/carrier)” , we read in the decision of the court of appeal, written by judge Timothy. Osterhaus.
A compensation judge does not have jurisdiction over the terms of doctors’ fee agreements, and the employer had changed the agreement anyway to comply with the law, the court heard.
“Third, the law provides no recourse for claimants to bring claims before a JCC regarding reimbursements passing between E/Cs and licensed treating physicians,” Osterhaus wrote. “Claimant’s view would apparently grant her potentially unlimited ‘one-time’ amendments for each billing error whenever she can show that a bill exceeds the scheduled rate for the appointment.”
The plaintiff’s attorney cited an earlier court ruling that allowed a competition judge to disregard testimony from an independent medical examiner who had charged more than the law allowed. But the court of appeal said this did not allow competition judges to authorize a new treating doctor because of the claimant’s concerns about fees.
The ruling did not address attorney fees in the case.
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