Marine Max, Inc. v. Blair

• Decision Date: 07 March 2019
• Docket Number: No. 1D17-3926,1D17-3926
• Parties: MARINE MAX, INC., and Seabright Insurance Company, et al., Appellants, v. Charles BLAIR, Appellee.
• Court: Florida District Court of Appeals

268 So.3d 839

MARINE MAX, INC., and Seabright Insurance Company, et al., Appellants,

v.Charles BLAIR, Appellee.

No. 1D17-3926

District Court of Appeal of Florida, First District.

March 7, 2019

Rehearing Denied April 18, 2019

Robert B. Griffis of Jones, Hurley, and Hand, P.A., Orlando, for Appellants.

Kimberly A. Hill of Kimberly A. Hill, P.L., Ft. Lauderdale, and Eric M. Christiansen of Lancaster & Eure, P.A., Sarasota, for Appellee.

Winsor, J.

This case requires us to consider what happens when a workers' compensation claimant seeks care from a doctor who—as a condition of continued treatment—demands compensation above and beyond the statutory limits. Marine Max, Inc., and its workers' compensation insurer (collectively, "Marine Max"), appeal an order directing them to "authorize and pay" a doctor who not only demanded compensation beyond limits the Legislature imposed but also demanded those payments in advance. We affirm in part and reverse in part.

Charles Blair was injured when he fell off a ladder in 2010. Marine Max treated the accident as compensable, and it authorized Dr. Jonathan Yunis to provide treatment.

Yunis operated on Blair several times between 2010 and 2014, when Yunis practiced with an outfit called Vascular Associates. Some of Yunis's services during this time were billed at statutory rates, and some were billed at higher rates. There were apparently no payment disputes.

In 2015, Yunis left Vascular Associates to start his own practice, the "Center for Hernia Repair." Later, in 2017, Blair sought additional treatment, still relating to the original accident. He filed a new petition for benefits, asking to return to Yunis for a new round of treatment. Unaware of Yunis's departure from Vascular Associates, the insurance adjuster told Blair he was authorizing follow-up treatment with Yunis. The adjuster then contacted Vascular Associates to set up an appointment. That is when the adjuster learned that Yunis no longer worked there. And when the adjuster contacted Yunis's new practice—still trying to make an appointment for Blair—he learned that the new practice required payments beyond the statutory rates. He also learned that the new practice required those above-statutory-rate amounts paid in advance.

Marine Max found the new terms unacceptable. There is no indication that Marine Max tried to negotiate with Yunis's new practice or that negotiations could have been successful.¹ Instead, Marine Max sought a doctor willing to work on acceptable payment terms. In its formal response to Blair's petition, Marine Max stated that because Yunis would not accept statutory rates, it was authorizing treatment with another physician. The adjuster then scheduled an appointment for Blair to see that other physician, but on counsel's advice, Blair refused to go.

The matter then went before the judge of compensation claims. Blair argued that he had an existing patient-physician relationship with Yunis and that Marine Max could not interfere with that relationship by "deauthorizing" Yunis without statutory authority. See generally City of Bartow v. Brewer , 896 So.2d 931, 933 (Fla. 1st DCA 2005). And according to Blair, the statute permits deauthorization only if the claimant is not making appropriate progress in recuperation, see § 440.13(2)(d), Fla. Stat., or if the provider was engaged in a pattern or practice of overutilization, see § 440.13(8)(b) 2. A provider's outright refusal to accept the fee schedule, Blair continues, does not justify deauthorization.

Marine Max responded that payments beyond statutory rates are allowed only if the employer agrees to pay the higher amount and the provider "specifically agrees in writing to follow identified procedures aimed at providing quality medical care to injured workers at reasonable costs." See § 440.13(13)(b), Fla. Stat. According to Marine Max, because it had no agreement with Yunis, it was left with only one real option: to provide medically necessary care—as section 440.13(2)(a) required—by authorizing someone else. Cf. Leon v. CSB Services, Inc. , 219 So.3d 166, 167 (Fla. 1st DCA 2017) (holding that authorization of new doctor is required when previous doctor "is no longer a viable option").

The JCC agreed with Blair and held that Marine Max's actions were "tantamount to a unilateral deauthorization." See generally Brewer , 896 So.2d at 933. It noted that "[a]ny dispute as to the applicability of the charges is within the exclusive preview of [the Department of Financial Services]" and that Marine Max "may still dispute the charges even if prepayment is required and made." The JCC then ordered Marine Max to "continue to authorize and pay Dr. Yunis." That led to this appeal.

First, Marine Max correctly argues that the JCC had no authority to order it to pay Yunis. Blair acknowledges as much; his counsel noted at oral argument that "the judge probably made a minor mistake" by including "the portion of the order that says ‘pay.’ " See also Ans. Br. at 12 ("[T]he JCC does not have the statutory authority to force the E/C to pay for medical services in excess of fee schedule."). Reimbursement is handled under section 440.13(7), Florida Statutes, and all reimbursement disputes fall under the exclusive jurisdiction of DFS. See § 440.13(11)(c), Fla. Stat. (stating that DFS "has exclusive jurisdiction to decide any matters concerning reimbursement"); see also Cook v. Palm Beach Cty. Sch. Bd. , 51 So.3d 619, 620 (Fla. 1st DCA 2011) (holding JCCs lack jurisdiction over payment disputes); Orange County v. Willis , 996 So.2d 870, 871 (Fla. 1st DCA 2008) (holding claimant "did not have standing to enforce payment of the doctor's bill"). Moreover, even if the JCC could resolve payment disputes, it could not compel prepayment, which chapter 440 does not contemplate for medical treatment. The relevant statutes and rules use the term "reimbursement," see, e.g. , § 440.13, Fla. Stat. (using the words "reimburse" and "reimbursement" forty-seven times); Fla. Admin. Code R. 69L-7.020 ("A carrier will reimburse a health care provider either the [statutory fee schedule] or a mutually agreed upon contract price."), which is distinct from advance payment.² Although the dissent would affirm the order in its entirety (including the prepayment requirement), we struggle to identify any basis on which we could do so. We must reverse the order on appeal to the extent it compels payment.

We still must determine, though, whether the JCC was correct to order Yunis's continued authorization. We conclude that it was. The only basis Marine Max offered to justify its doctor substitution was Yunis's insistence on particular financial terms. But a JCC's award of medically necessary care "is to be made without regard to the possibility that a payment dispute might arise between the employer and the provider." Tiznado v. Orlando Reg'l Healthcare Sys. , 773 So.2d 584, 585-86 (Fla. 1st DCA 2000). The JCC was therefore required to determine whether Yunis's continued authorization was "reasonable" and "medically necessary," see § 440.13(2)(a), Fla. Stat., without considering the possibility (or even probability) that Yunis and Marine Max would never reach agreement on terms. The JCC found that Blair had established a satisfactory patient-physician relationship with Yunis, and that Marine Max had "not established a valid reason for deauthorization of Dr. Yunis under these circumstances." These conclusions were supported by competent substantial evidence. We therefore must affirm the order to the extent it requires Yunis's continued authorization.

Marine Max contends it is illogical to require continued authorization of a doctor unwilling to treat the claimant on statutory terms. That point is not without force, but the law limits the bases on which an employer may officially deauthorize a previously authorized physician. Ordinarily a claimant unable to receive care from the authorized physician (because of payment disputes or otherwise) might seek a new authorized physician, cf. , e.g. , Leon , 219 So.3d at 167 (noting that claimant appealed denial of new authorized treater after old authorized treater was "henceforth unwilling to treat" claimant), but Blair has resisted that approach, and it is not up to us to weigh the usefulness of his demand for Yunis's continued authorization.

Nevertheless, it may well turn out that the continued authorization does not help Blair, assuming Yunis remains unwilling to provide treatment within the statutory compensation limits and Marine Max remains unwilling to pay beyond the statutory compensation limits (or to pay in advance). Authorization cannot help a claimant who remains untreated, and it should go without saying that neither Marine Max nor any judge of compensation claims can force Yunis to provide treatment he does not wish to provide. Marine Max can (and must, for now) continue to "authorize" Yunis, but all authorization does is allow Yunis to demand compensation if he chooses to treat Blair. See § 440.13(3)(a), Fla. Stat. ("As a condition to eligibility for payment under this chapter, a health care provider who renders services must receive authorization from the carrier before providing treatment."). If Yunis elects to provide treatment, his authorization will permit him to seek compensation under Chapter 440. See id. § 440.13(13)(a) (noting that authorized providers "have recourse against the employer or carrier for payment for services rendered in accordance with this chapter"). If he and Marine Max reach a different agreement, he can operate under that agreement. See id. § 440.13(13)(b). But if he remains unwilling to proceed under the system the Legislature created (with its attendant limitations on compensation, see, e.g. , id. ), no employer can force him to do otherwise. On the other hand, if Blair concludes that any ongoing refusal to treat means Yunis "is no longer a viable option," Blair can seek authorization of a replacement physician, see Leon , 219...