Remington v. Ocala/United Self Insured
| Decision Date | 31 October 2006 |
| Docket Number | No. 1D05-6038.,1D05-6038. |
| Citation | 940 So.2d 1207 |
| Parties | Theron REMINGTON, Appellant, v. CITY OF OCALA/UNITED SELF INSURED, Appellees. |
| Court | Florida District Court of Appeals |
Todd J. Sanders and Kelli Biferie Hastings of Bichler & Kelley, P.A., Winter Park, for Appellant.
Mary L. Wakeman and Betty D. Marion of McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellees.
Theron Remington appeals the final order denying the petition for benefits he filed seeking to recover transportation costs necessarily incurred in obtaining medicines prescribed by his authorized treating physicians. The judge of compensation claims ruled that "Florida workers' compensation law does not require an employer or carrier to provide reimbursement to an injured worker for travel related to obtaining prescription drugs or other pharmacy supplies." We reverse and remand for further proceedings.
The employer's responsibility to furnish medicines that authorized physicians prescribe is not in question. At the time of the claimant's initial compensable injury in December of 1997, as well as at the time of his second compensable injury in May of 2002, the Florida's Workers' Compensation Act provided:
Subject to the limitations specified elsewhere in this chapter, the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require, including medicines, medical supplies, durable medical equipment, orthoses, prostheses, and other medically necessary apparatus.
§ 440.13(2)(a), Fla. Stat. (2001) (emphasis supplied); § 440.13(2)(a), Fla. Stat. (1997) (emphasis supplied). Under the Act, the word "`[m]edicine' means a drug prescribed by an authorized health care provider . . . ." § 440.13(1)(n), Fla. Stat. (2001); § 440.13(1)(n), Fla. Stat. (1997).
Asked in Mobley v. Jack & Son Plumbing, 170 So.2d 41 (Fla.1964), to decide whether this statutory language required an employer to furnish injured employees "travel expenses incident to medical treatment," id. at 46, along with the cost of the medical treatment itself, our supreme court answered with what remains the definitive construction of the statute:
Chapter 440 does not specifically require or authorize payment of travel expenses incurred in obtaining medical treatment. Nevertheless, we are of the view that Section 440.13, which requires the employer to furnish to the employee "such remedial treatment, care and attendance" as the injury shall require, must be interpreted to include reasonable travel expenses incurred by the employee in presenting himself at the place where such treatment and care is provided.
There can be no doubt that the Legislature intended that an injured employee be given medical treatment at the expense of the employer-carrier and without expense to himself. This legislative intent would not be fully accomplished if the employee were required to pay his own travel expenses necessarily incurred in obtaining medical treatment.
We doubt that anyone would question payment of an ambulance charge for transporting an injured employee to or from his home when necessary in the course of his treatment. Yet, technically, such a charge is not for "remedial treatment, care and attendance." Again, if a claimant were to be offered treatment by the employer at one of the out of state clinics, failure of the employer to also furnish travel expenses would make the offer of treatment an empty gesture. These two illustrations may be said to be unusual, but, as we view the question, the difference in the cited situations and travel by a claimant from his home to a doctor or hospital is one only in degree, not in kind.
Considering the purposes of the Workmen's Compensation Act and the benefits to be given injured employees by its terms, we conclude that travel expenses necessarily incurred in enjoying the medical benefits provided by the Act are an incident of medical care and treatment. Therefore, the employer-carrier must either furnish such transportation or pay claimant the reasonable actual cost thereof.
Id. at 47. While the supreme court was concerned in Mobley with the cost necessitated in transporting a claimant "from his home to a doctor or hospital" to obtain care or treatment from medical personnel, we see nothing in principle that justifies a different result for transportation costs necessarily incurred to obtain treatment from medicines.
Ever since it was decided, the Mobley decision has remained controlling authority, see Sam's Club v. Bair, 678 So.2d 902, 904 (Fla. 1st DCA 1996) (), statutory changes notwithstanding. The Legislature added a provision to section 440.13, after Mobley was decided, authorizing inclusion of certain medical mileage as "part of [an injured employee's] remedial treatment, care, and attendance," Ch. 77-290, § 3, at 1287, Laws of Fla., thereby adopting pro tanto the supreme court's construction of statutory language that antedated (and survived) chapter 77-290. Bair, 678 So.2d at 903.
When the Legislature later removed the medical mileage provision it had added in 1977, see Ch. 93-415, § 17, at 98-111, Laws of Fla., it was simply excising surplusage. We so held in Bair, where
[w]e conclude[d] that this omission did not abrogate the judicial construction in Mobley and its progeny that section 440.13(2)(a) implicitly authorizes such costs.
. . . . Although it might be reasonable to conclude that the legislature intended to eliminate reimbursement for costs of transportation by deleting that provision from the 1993 amendment, any such conclusion must be harmonized with the recognition that the legislature reenacted the long-standing requirement that the employer shall furnish "remedial treatment, care, and attendance for such period as the nature of the injury or the process o[f] recovery may require." Accordingly, the legislature must be presumed to have continued its approval of the supreme court's construction of this language in Mobley to permit reimbursement of medical transportation.
. . . . Presumably, the legislature omitted the costs provision with full knowledge that payment of costs would still be awarded as part of a claimant's remedial treatment, care, and attendance, as held in Mobley, else it would have stated the contrary.
Bair, 678 So.2d at 903-04. See also Wal Mart Stores, Inc. v. Mann, 690 So.2d 649, 650 (Fla. 1st DCA 1997) ().
When, by enacting section 17 of chapter 93-415 of the Laws of Florida, the Legislature deleted the medical mileage provision that it had enacted after Mobley, Ch. 77-290, § 3, at 1287, Laws of Fla., the Legislature also added another provision for claiming and litigating transportation costs:
(2) The Office of the Judges of Compensation Claims shall review each petition and shall dismiss each petition, upon its own motion or upon the motion of any party, that does not on its face specifically identify or itemize the following:
....
(g) All travel costs to which the employee believes he is entitled, including dates of travel and purpose of travel, means of transportation, and mileage.
Ch. 93-415, § 25, at 137, Laws of Fla. (codified at § 440.192(2)(g), Fla. Stat. (Supp.1994)). In the decade since Bair was decided, the Legislature has left the pertinent language in sections 440.13(2)(a) and 440.192(2)(g) intact, other amendments to the Act notwithstanding. See, e.g., Ch. 2006-197, § 91, at 1625, Fla. Sess. Law Serv. (West) ( section 440.13, Florida Statutes).
Ostensibly recognizing the continued viability of Mobley and the authority of Bair's holding to that effect, the judge of compensation claims purported to distinguish those cases and to limit the principle that animated them, ruling that section 440.13(2)(a) "does not require an employer or carrier to provide reimbursement to an injured worker for travel related to obtaining prescription drugs or other pharmacy supplies." But the order under review identifies as its central underpinning a rationale that is antithetical to the teachings of Mobley and Bair and cannot be squared with their holdings. The order states:
To require the E/SA to reimburse an injured worker for travel expenses incurred in going to and from the pharmacy to obtain medicines prescribed by an authorized physician would require a conclusion that the act of going to the pharmacy constitutes treatment.
....
Therefore, since the act of going to a pharmacy does not fit within the definition of treatment, reimbursement of mileage for that kind of travel would not seem to be required....
The order below runs counter to every other decision on the point by a judge of compensation claims to which our attention has been drawn. See Mills v. Orange County Fire Rescue, OJCC No. 05-016395TWS, Order on Expedited Hr'g, at 3-4 (Dec. 14, 2005) () (, "pursuant to Mobley . . ., the Claimant is entitled to payment of pharmacy mileage" because "the definition of `treatment' includes `medicine'"); Antonelli v. Orange County Fire Rescue, OJCC No. 96-002024WJC, Final Order on Expedited Hr'g, at 6 (Oct. 13, 2005) () (concluding that "pharmacy bills and mileage related thereto constitutes medical care and treatment under § 440.13(2)(a)"); O'Donnell v. Laborer's Int'l Union, OJCC No. 03-025029ORL, ...
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