St. Augustine Marine Canvas v. Lunsford

• Decision Date: 19 December 2005
• Docket Number: No. 1D04-5560.,1D04-5560.
• Citation: 917 So.2d 280
• Parties: ST. AUGUSTINE MARINE CANVAS & UPHOLSTERY, INC. and Associated Industries Insurance Company, Inc., Appellants, v. Mildred LUNSFORD, Appellee.
• Court: Florida Supreme Court

917 So.2d 280

ST. AUGUSTINE MARINE CANVAS & UPHOLSTERY, INC. and Associated Industries Insurance Company, Inc., Appellants, v. Mildred LUNSFORD, Appellee.

No. 1D04-5560.

District Court of Appeal of Florida, First District.

December 19, 2005.

Rayford H. Taylor, Esquire of Stiles, Taylor & Grace, P.A., Atlanta, GA, Mary Ann Stiles, Esquire of Stiles, Taylor & Grace, P.A., Tampa and John E. Hankal, Esquire of Taylor, Stiles & Grace, Jacksonville, for Appellants.

Raymond M. Ravis, Esquire of Anderson & Howell, P.A., Jacksonville, for Appellee.

BENTON, J.

On this appeal from a compensation order, we conclude that the judge of compensation claims erred in deeming Arnold Graham-Smith, M.D., an authorized treating physician on the supposed authority of section 440.13(3)(d), Florida Statutes (2002). On that basis, we reverse the award of medical benefits for Dr. Graham-Smith's services, as well as temporary total disability and permanent impairment benefits awarded in reliance on his testimony.

I.

Injured lifting a large bolt of fabric on March 21, 2002, while working for St. Augustine Marine Canvas & Upholstery, Inc. (Marine Canvas), Mildred Lunsford first obtained medical care at the Healing Arts Urgent Care Center, then from Dr. Tod Northrup, an orthopedic surgeon, and from Dr. Jyoti Patel, to whom Dr. Northrup referred her for pain management. These providers' authorization — at all pertinent times — to provide "such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require," § 440.13(2)(a), Fla. Stat. (2002), is not in question.

At issue is whether, despite repeated refusals to authorize Dr. Graham-Smith, Marine Canvas and its insurance carrier are nevertheless, as a matter of law, responsible for payment of Dr. Graham-Smith's bills for treatment that included major surgery (which was paid for by Ms. Lunsford's health insurance policy). Although claimant's counsel did not request authorization for the surgery beforehand, claimant's counsel did request that Dr. Graham-Smith be authorized as a treating physician. Also at issue is whether indemnity and impairment benefits were properly awarded on the basis of Dr. Graham-Smith's testimony.

II.

While under Dr. Northrup's care, Ms. Lunsford (through counsel) filed a petition for benefits dated July 25, 2002, requesting authorization for treatment by Dr. Graham-Smith, who, like Dr. Northrup, is an orthopedic surgeon. Marine Canvas and its carrier refused to authorize Dr. Graham-Smith as a treating physician. Simultaneously, they advised Ms. Lunsford that she was entitled to an independent medical examination and to a list of three orthopedic surgeons to choose from, if she wanted a different treating physician. At no time was the offer to authorize an alternative orthopedist withdrawn.

Denial of the petition dated July 25, 2002 notwithstanding, Dr. Graham-Smith's office requested authorization on December 13, 2002, to evaluate and treat Ms. Lunsford, along with prepayment of $600.00 for an appointment her counsel had scheduled with Dr. Graham-Smith. In response, on behalf of Marine Canvas and its carrier, his office was again advised that Dr. Graham-Smith was not authorized to treat the claimant.¹

In a second petition for benefits dated December 23, 2002, the claimant (through counsel) requested authorization to see Dr. Graham-Smith for a second opinion regarding her treatment. Marine Canvas and its carrier refused to authorize such a second opinion on grounds that no managed care arrangement was in place. See generally § 440.134(6)(c)(9.), Fla. Stat. (2002) (requiring managed care plans to include a "process allowing employees to obtain one second medical opinion").

The claimant filed a third petition for benefits dated February 6, 2003, which requested, along with indemnity benefits, a one-time change of physician to Dr. Graham-Smith and a second opinion by an orthopedic surgeon. Marine Canvas and its carrier responded by agreeing to a one-time change in physician, submitting the names of three orthopedic surgeons (but not Dr. Graham-Smith's) from which the claimant could select, and denying any other authorization for a second opinion. At a mediation conference on March 6, 2003, the employer and its carrier provided the claimant with the names of three orthopedists, informing her she could choose a new treating physician.

III.

Later, on April 16, 2003, Dr. Northrup signed a letter addressed to — and drafted by — the claimant's attorney.² A week thereafter, the claimant filed a fourth petition for benefits dated April 23, 2003, requesting authorization for an evaluation and second opinion by Dr. Graham-Smith regarding maximum medical improvement. Attached to the petition was the letter Dr. Northrup had signed, recommending an evaluation by Dr. Graham-Smith "to determine whether she would be a candidate for percutaneous nucleoplasty." The adjuster testified that the copy attached to the petition was the first he had seen of Dr. Northrup's letter.³

Marine Canvas and its carrier responded to the April 23, 2003 petition (which was received on April 29, 2003) on May 12, 2003. They did not authorize Dr. Graham-Smith, but stated that the claimant could have an independent medical examination or select a new treating physician from the list of three physicians previously supplied. Mr. Heidemann, who worked for the adjuster, testified that Ms. Lunsford did not then request an independent medical examination, and did not select a physician from the list.

The claimant's attorney sent a letter to counsel for Marine Canvas and its carrier, also dated April 23, 2003, indicating that he had again scheduled a visit for the claimant with Dr. Graham-Smith, this time for June 10, 2003. The letter requested authorization for an initial evaluation and prepayment of $600.00. On June 10, 2003, Mr. Heidemann advised somebody in Dr. Graham-Smith's office that the appointment claimant's counsel had scheduled for that day was not authorized by the employer. Dr. Graham-Smith saw her anyway on June 10, 2003, the day he began diagnosing and treating her, and billing her health insurer. Eventually, he decided that surgery to effect a left sacroiliac joint fusion was indicated,⁴ and performed the surgery on October 9, 2003.⁵

IV.

Section 440.13, Florida Statutes (2002), establishes an employer's duty to see that an injured employee gets medical treatment, and prescribes the procedures for authorizing medical providers. The employer must secure provision of medically necessary treatment to an injured employee. See § 440.13(2)(a), Fla. Stat. (2002). The employer has the initial right to select the treating physician. See City of Bartow v. Brewer, 896 So.2d 931, 933 (Fla. 1st DCA 2005). But, after an employer has authorized a medical provider to evaluate and treat an injured employee, the employee may request a one-time change of physician. In that case, the employer must offer the employee a choice of at least three alternative physicians. See § 440.13(2)(f), Fla. Stat. (2002).

If an injured employee requests medically necessary treatment, and the employer fails to provide it within a reasonable time, the employee may obtain such treatment on her own at the employer's expense. See § 440.13(2)(c), Fla. Stat. (2002). Section 440.13⁶ does not, however, give the employee the right to treatment by the physician of her choice unless the employer refuses to provide a physician altogether.⁷ Complementing one another, section 440.13(2) lists the employer's duties, while section 440.13(3) sets out the procedures under which physicians are authorized to receive payment for treating employees. Sections 440.13(2)(a) and (c) and 440.13(3)(d) are properly read together.⁸

To be eligible for payment, a health care provider must receive authorization from the carrier before providing treatment (except in emergency situations). See § 440.13(3)(a), Fla. Stat. (2002). A health care provider's referral to another health care provider does not constitute authorization by the carrier. See § 440.13(3)(c), Fla. Stat. (2002). When one health care provider refers an employee to another health care provider for treatment, section 440.13(3)(d) applies. See Wuesthoff Mem'l Hosp. v. Schmitt, 694 So.2d 145, 145 (Fla. 1st DCA 1997).

A carrier must respond, by telephone or in writing, to a request for authorization by the close of the third business day after receipt of the request. A carrier who fails to respond to a written request for authorization for referral for medical treatment by the close of the third business day after receipt of the request consents to the medical necessity for such treatment. All such requests must be made to the carrier. Notice to the carrier does not include notice to the employer.

§ 440.13(3)(d), Fla. Stat. (2002). Section 440.13(3)(d) "applies only to requests from doctors for referrals to other doctors." Schmitt, 694 So.2d at 145. If the employee makes the request, the employer has "a reasonable time" to respond; otherwise, treatment is deemed medically necessary. § 440.13(2)(c), Fla. Stat. (2002). If an authorized provider requests treatment, the employer has only three days to respond; otherwise, the treatment is deemed medically necessary. See § 440.13(3)(d), Fla. Stat. (2002).

V.

Here, while the claimant was being treated by one orthopedic surgeon, she asked to be treated by a different orthopedic surgeon, Dr. Graham-Smith. Marine Canvas and its carrier denied her requests for authorization for Dr. Graham-Smith four times. Even after attending mediation, she did not seek treatment from one of the other authorized physicians she was offered. Instead, her attorney scheduled another appointment with Dr. Graham-Smith. Once the appointment had been scheduled, she filed another petition for benefits requesting "[a]uthorization of Dr. Arnold Graham-Smith, orthopedist, for evaluation and a...