Champlain Towers v. Dudley, s. BD-426

• Decision Date: 03 January 1986
• Docket Number: BG-13,Nos. BD-426,s. BD-426
• Citation: 481 So.2d 532,11 Fla. L. Weekly 130
• Parties: 11 Fla. L. Weekly 130 CHAMPLAIN TOWERS and Old Republic Insurance Co., Appellants, v. Earl DUDLEY and the Division of Workers' Compensation, Appellees.
• Court: Florida District Court of Appeals

Page 532

481 So.2d 532

11 Fla. L. Weekly 130

CHAMPLAIN TOWERS and Old Republic Insurance Co., Appellants, v. Earl DUDLEY and the Division of Workers' Compensation, Appellees.

Nos. BD-426, BG-13.

District Court of Appeal of Florida,

First District.

Jan. 3, 1986.

Rehearing Denied Feb. 6, 1986.

Robert H. Gregory, Miami, for appellants.

Jerold Feuer, Miami, for appellees.

WENTWORTH, Judge.

In two cases consolidated for appeal the employer/carrier seeks review of workers' compensation orders of November 5, 1984, and March 8, 1985. Error is asserted in the award of (1) permanent total disability benefits from maximum medical improvement on December 8, 1983; (2) past and future medical treatment "as the nature of Claimant's conditions and the process of their recovery ¹ and/or palliation require;" and (3) attorney's fees, based on benefits for a 26.4 year life expectancy. We affirm on all issues except as to cost of past unauthorized medical care, and as to error in the computation of claimant's life expectancy at 26.4 instead of 20.5 years.

In awarding the cost of care by Dr. Stillman, psychiatrist, and Dr. Crown, psychologist, the deputy found "a request was made for medical treatment ... and authorization was offered ... in the form of three doctors ... There was an objection raised ... and no subsequent authorization was made." He relied upon the following provisions of § 440.13, Florida Statutes:

(3) If an injured employee objects to the medical attendance furnished by the employer pursuant to subsection (2), it shall be the duty of the employer to select another physician....

(2) ... (b) If the employer fails to provide such ... after request by the injured employee, the employee may do so at the expense of the employer, the reasonableness and the necessity to be approved by a deputy.... The employee shall not be entitled to recover ... unless he has requested the employer to furnish the same and the employer has failed ... to do so....

Appellant counters with recent decisions that "when the parties cannot agree to a [non-emergency] treating physician ... it is the burden of the claimant to seek a decision through the deputy. Since the claimant failed to ask for resolution of the deadlocks, he is responsible...." Wackenhut Corp. v. Freilich, 464 So.2d 217, at 218 (Fla. 1st DCA 1985); Usher v. Cothron, 445 So.2d 387 (Fla. 1st DCA 1984). Assuming each party properly complied with all statutory duties, these decisions appear to be proper implementations of the statute, even when we consider its further provision that "[i]t is unlawful ... to coerce or attempt to coerce a sick or injured employee in the selection of a physician...." § 440.13(3), Florida Statutes. The difficulty lies in assessing the particular facts to determine whether an alleged "deadlock" has resulted from a failure by either claimant or carrier to meet prescribed statutory conditions.

Although we agree with the deputy's statement in the order in this case that the statute (first above quoted) "requires the tender of alternative care after the objection is made," we do not agree that the actual scenario of events between the parties here was that of a request, authorization, and objection which would trigger a renewed duty to tender alternative authorized care. Instead, claimant's counsel wrote: "Request is hereby made for a board certified psychiatrist, namely, Dr. Arthur T. Stillman.... Request is also made for neuropsychological testing and specific request is made for ... Crown ... or ... Berntson...." His response to authorization of others was, "We object to the physicians named" for treatment. In the context of this case we find that the specific requests for authorization cannot reasonably be regarded as a continuing request intended to accord the carrier its right of initial choice, subject only to a veto to be exercised by claimant in a way which does not effectively transfer initial choice to claimant. Although the statute imposes no requirement that claimant state grounds for objection, it clearly does impose the duty of a continuing good faith request for another authorization, to which carrier must in turn respond with reasonable alternatives until a "deadlock" requires the deputy's intervention. Communications and actions of the parties in this case (as in Wackenhut, supra ) show claimant's abiding intention to accept only his originally specified choice of caretakers. To effectuate that result at carrier's cost absent emergency does,...