Palm Beach Cnty. Sch. Dist., & Sedgwick CMS, Inc. v. Smith
| Decision Date | 09 February 2022 |
| Docket Number | 1D20-3767 |
| Parties | PALM BEACH COUNTY SCHOOL DISTRICT, and Sedgwick CMS, Inc., Appellants, v. Frances SMITH, Appellee. |
| Court | Florida District Court of Appeals |
Hinda Klein and Samuel B. Spinner of Conroy Simberg, Hollywood, for Appellants.
Wendy S. Loquasto of Fox & Loquasto, LLC, Tallahassee, and Kenneth E. Ehrlich of Felice, Ehrlich & Naparstek, West Palm Beach, for Appellee.
In this workers’ compensation case, the Employer and Carrier (E/C) appeal the order of the Judge of Compensation Claims (JCC) striking a physician authorized by the E/C under the one-time-change statute, § 440.13(2)(f), Florida Statutes, because the physician's initial evaluation and treatment fee exceeded the base fee schedule rate. We reverse because the Workers’ Compensation Code doesn't authorize a JCC to strike a duly authorized treating physician because of a fee-related problem.
The facts here are straightforward. Claimant sought a one-time change in physician that the E/C granted. The E/C timely appointed a new treating physician, immediately scheduled an appointment for Claimant, and deauthorized the previous treating physician. In arranging the change of physician, E/C and the new authorized treating physician completed a form fee agreement authorizing an advance payment of $800 for Claimant's initial evaluation and treatment. This amount exceeded the base rate provided in the workers’ compensation fee schedule. See Fla. Admin. Code R. 69L-7.020. When Claimant's attorney discovered the amount of the fee, a quarrel ensued between Claimant and the physician about videoing the appointment, which led to Claimant not appearing for her appointment. The appointment was later rescheduled. Meanwhile, Claimant took the view that the higher-than-schedule fee transformed the authorized treating physician into an independent medical examiner (IME) in service of the E/C, nullified the physician's status as an authorized provider, and qualified Claimant to receive a new one-time-change physician. The E/C refused to authorize a new physician. Instead, the E/C and physician revised the language of their fee agreement to align the $800 fee with the statutory provision allowing for fees in excess of the fee schedule. After a final hearing on Claimant's request for a one-time change, the JCC issued a final compensation order concluding that a physician seeing a claimant "is not an authorized treating physician where the physician charges in excess of the maximum amount allowed by law." The JCC thus terminated the E/C-provided treating physician and directed Claimant to receive the one-time change physician of her choice. The E/C then appealed.
The E/C appeals the JCC's authority to strike the one-time-change physician it authorized under § 440.13(2)(f) and to award Claimant a new one-time-change physician of her choice. Because resolution of this issue involves the JCC's application of law to undisputed facts, our review is de novo. Cabrera v. Outdoor Empire , 108 So. 3d 691, 692 (Fla. 1st DCA 2013).
The E/C argues that the JCC erred by striking the physician based on its fee agreement with him, and that any defect in the first-draft agreement was timely cured before Claimant saw the physician. Consistent with this argument, 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. First, as a jurisdictional matter, the scope of the JCCs work does not extend to resolving disagreements about the terms of fee agreements between E/Cs and treating physicians. See Marine Max, Inc. v. Blair , 268 So. 3d 839, 842 (Fla. 1st DCA 2019) (). Instead, "all reimbursement disputes fall under the exclusive jurisdiction of DFS." Id. ; § 440.13(11)(a), Fla. Stat. (); § 440.13(11)(c), Fla. Stat. (); see also Cook v. Palm Beach Cty. Sch. Bd ., 51 So. 3d 619, 620 (Fla. 1st DCA 2011) (); Orange County v. Willis , 996 So. 2d 870, 871 (Fla. 1st DCA 2008) (); Wolk v. Jaylen Homes, Inc ., 593 So. 2d 1058, 1059–60 (Fla. 1st DCA 1992) (citing Carswell v. Broderick Constr ., 583 So. 2d 803, 804 (Fla. 1st DCA 1991) ) (discussing the roles of the Division and JCC as well as the Division's specific authority to interpret, determine compliance, and resolve disputes regarding the fee schedule). In Marine Max , we recognized that a JCC could not order an E/C to pay an authorized provider in excess of what is allowed by law. 268 So. 3d at 842. Similarly, here, the JCC's authority doesn't extend to striking a provider's authorization because his or her rates exceed the scheduled rates. This is an area where review and resolution are left to another entity.
Second, the workers’ compensation code expressly allows for higher-than-fee-schedule arrangements. Whereas the JCC imputed bias in the fee arrangement taking the view that payments "exceed[ing] the fee schedule amount undermine confidence in the neutrality of the authorized provider," § 440.13(13)(b) doesn't prohibit the E/C and physician from agreeing to higher rates. It says:
(b) Fees charged for remedial treatment, care, and attendance, except for independent medical examinations and consensus independent medical examinations, may not exceed the applicable fee schedules adopted under this chapter and department rule. Notwithstanding any other provision in this chapter, if a physician or health care provider specifically agrees in writing to follow identified procedures aimed at providing quality medical care to injured workers at reasonable costs, deviations from established fee schedules shall be permitted . Written agreements warranting deviations may include, but are not limited to, the timely scheduling of appointments for injured workers, participating in return-to-work programs with injured workers' employers, expediting the reporting of treatments provided to injured workers, and agreeing to continuing education, utilization review, quality assurance, precertification, and case management systems that are designed to provide needed treatment for injured workers.
(Emphasis added). In other words, providers aren't categorically tainted by higher-than-schedule fees. And carriers and authorized providers may agree to reimbursements under "either the [statutory fee] schedule or a mutually agreed upon contract price."
Marine Max , 268 So. 3d at 842 (citing Fla. Admin. Code...
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