Articles Posted in workers compensation

As we know, the law requires that a medical benefit which includes, but is not limited to, the treatment, a device or an aid be medically necessary.  In order to award that benefit, the test is whether it is medically necessary.  A Judge of Compensation Claims may award only those medical benefits that are medically necessary.  It is important to understand the distinction between a medically necessary benefit and those that are merely pleasant or convenient.  Simple convenience will not suffice nor would a benefit that would neither improve nor aid in recovery be considered medically necessary. Continue reading →

The answer to this question is – NO.  The 1^st District Court of Appeals recently addressed this question and issued an opinion which can be found in Boley Centers, Inc./Comp Options v. William Vines, Case No. 1D14-5869 (November 16, 2015). Continue reading →

According to Fla. Stat. 440.13(2)(f), “Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during his course of treatment for any one accident. Upon granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become de‑authorized upon written notification by the employer or carrier.  The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within five (5) days after receipt of the request.  If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.

As of late, there has been some controversy as to whether the physician must be in the same specialty as that of the treating physician. As you will note from the Statute, same does not contain any requirement whatsoever that the one-time change must be in the same specialty.  In fact, said issue was recently addressed in Edwards v. Miami-Dade County Public Schools, OJCC #15‑009693CMH.  In Edwards, Judge Hill ruled that Fla. Stat. 440.13(2)(f), does not require the Claimant to first prove as a condition precedent to the operation of this subsection, that all the proposed treatment be within the same medical specialty.

As you will note, in the most recent case, it is evident that the Statute is devoid with regard to specific language pertaining to whether the one-time change must be within the same specialty. As such, it is our position that once a one-time change has been made, the Claimant may be free to choose any specialty and may not compelled to change to the same specialty.

While there are no statutory or regulatory provisions requiring a Worker’s Compensation Medicare Set-Aside (WCMSA) proposal be submitted to CMS for review, in all cases, submission of a WCMSA proposal is a recommended process and in some cases a required process.

If you choose to submit a WCMSA for review, CMS requests that you comply with its established policies and procedures.  CMS will only review new WCMSA proposals that meet the following criteria: Continue reading →

As a general rule, the Judge of Compensation Claims can only consider the testimony of authorized doctors. Likewise, the Judge is limited to determining if the injured worker is owed any benefits in the past for medical care and/or lost wages. Also if a claim was filed for medical treatment to be approved the Judge can decide if the insurance company should provide that requested treatment.

The Judge of Compensation Claims has no jurisdiction over fees charged by an authorized medical provider. Judge Almeyda noted in the case of Maqueira v. FrankCrum, OJCC 07‑009035ERA that AHCA has exclusive jurisdiction over that issue. Continue reading →

A represented employee can settle his workers’ compensation case by signing a release of his workers’ compensation claim in ANY third party litigation cases including:

• An EEOC claim decided March 6, 2015 by Judge Sojourner: Bond v. Hilton Garden Inn/Travelers, OJCC 15-002240MES.
• A general release in a separation agreement RELATED to the employment relationship with the employer. Risco USA Corp. v. Alexander, 91 So.3d 870, 872 (Fla. 1^st DCA 2012).
• A general release of the employer in a negligence action against a coworker who rearended him. Patco Transport, Inc. v. Estupian, 917 So.2d 922 (Fla. 1^st DCA 2005). Continue reading →

Issues that are outside of FSA 440 and issues over which the JCC has no jurisdiction per case law and recent JCC decisions:

1. The JCC lacks jurisdiction over all employment benefits between the employee and the employer including reinstatement of medical leave benefits, vacation, or sick leave as those issues are between the employee and the employer. Spinelli v Fla. Dept of Commerce, 490 So.2d 1294,1296 (Fla 1^st DCA 1986)
2. As 440.39 (3) (b) states the JCC has no jurisdiction to resolve a dispute over the worker’s compensation carrier’s lien and payback from the claimant’s settlement against the at fault party. Such jurisdiction rests with the Circuit Court per University of Central Florida v Gleaves, 586 So.2d 458, 459 (Fla 1^st DCA 1991)
3. Even if the employee agrees to execute a resignation or a general release of the Employer the JCC have ruled that they do not have jurisdiction over the same or the ability to enforce an Order compelling the claimant to execute a release or resignation. McIntrye v Silver Airways OJCC 12-024199DAL. “Moreover, General Releases and Resignations are outside the bounds of Chapter 440 subject matter jurisdiction. Therefore the Court finds and concludes that it does not have the power or jurisdiction to enforce any settlement provisions regarding execution of a general release or voluntary resignation agreement.” Galloway v Douglas Equipment, OJCC 05-009993WHR. Continue reading →