Westinghouse Elec. v. Widlan, No. 92-1268

• Court: Court of Appeal of Florida (US)
• Writing for the Court: MICKLE; PER CURIAM
• Citation: 623 So.2d 511
• Decision Date: 16 April 1993
• Docket Number: No. 92-1268
• Parties: 18 Fla. L. Weekly D1051 WESTINGHOUSE ELECTRIC and Gates McDonald & Co., Appellants, v. Samuel WIDLAN, Appellee.

Page 511

623 So.2d 511 18 Fla. L. Weekly D1051 WESTINGHOUSE ELECTRIC and Gates McDonald & Co., Appellants,
v.
Samuel WIDLAN, Appellee. No. 92-1268. District Court of Appeal of Florida,
First District. April 16, 1993.
Opinion Granting Reconsideration Sept. 3, 1993.

Page 512

Todd M. Wernstrom, of Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberly, P.A., Miami, for appellant.

Steven E. Slootsky, of Bradley P. Goodman, P.A., Fort Lauderdale, for appellee.

MICKLE, Judge.

The Employer/Carrier (E/C) appeal an order of the Judge of Compensation Claims (JCC) making the E/C responsible for payment of 1) all outstanding medical bills of Claimant's chiropractor, Dr. Frankl, plus statutory interest, for the period from August 15, 1988 to July 3, 1989; 2) taxable costs; and 3) a reasonable attorney's fee to Claimant's attorney. We affirm the award of payment of Claimant's medical bills to Dr. Frankl (plus statutory interest) and taxable costs. We reverse the award of attorney's fees, because this was not "a claim for medical benefits only," so as to permit an award under section 440.34(3)(a), Florida Statutes (1987).

The E/C challenged the subject matter jurisdiction of the JCC and moved for dismissal, which motion was denied. In Carswell v. Broderick Construction, 583 So.2d 803 (Fla. 1st DCA 1991), we reviewed the provisions of section 440.13, Florida Statutes (1991), in an appeal following the JCC's dismissal, on jurisdictional grounds, of a request for payment of medical benefits. We found the statute delineates the duties and responsibilities of the JCC and the Division of Workers' Compensation ("Division") as follows:

The Judge of Compensation Claims assures that the injured claimant receives appropriate medical treatment, authorizes health care providers in disputes between the claimant and the employer/carrier, approves payment of medical bills presented in proper form and resolves conflicts between health care providers as to the medical status of the claimant. The Division establishes the fee schedule, determines compliance with the schedule, interprets procedures under the schedule and resolves disputes concerning gouging.

Id. at 804; Wolk v. Jaylen Homes, Inc., 593 So.2d 1058, 1059-60 (Fla. 1st DCA 1992). Having determined the issue in Carswell was "excessive treatment, i.e., gouging," we affirmed the JCC's dismissal of the matter. 583 So.2d at 804. The 1991 version of section 440.13 is applicable to the case sub judice regarding the jurisdictional issue only. See Terners of Miami Corp. v. Freshwater, 599

Page 513

So.2d 674, 675 (Fla. 1st DCA 1992) (en banc). We find the issues presented below lie within the JCC's jurisdictional purview, so that denial of the E/C's motion to dismiss was proper. See Chase v. Henkel & McCoy, 562 So.2d 831 (Fla. 1st DCA 1990) (JCC properly heard suit for payment of unauthorized chiropractic treatment later determined to be reasonable and necessary, and it was error to deny recovery for the treating chiropractor's bills); Gust K. Newberg Construction Co. v. Warren, 449 So.2d 934 (Fla. 1st DCA 1984) (JCC authorized to consider issue involving payment for chiropractic services found to have been necessary after carrier's notice of deauthorization). Our decisions in Lamounette v. Akins, 547 So.2d 1001 (Fla. 1st DCA 1989) (issue of overutilization of services) and Atlantic Foundation v. Gurlacz, 582 So.2d 10 (Fla. 1st DCA 1991) (reimbursement dispute), receded from on other grounds, Terners of Miami, 599 So.2d at 675, on which the E/C rely, are distinguishable.

The parties stipulated that Claimant, Samuel Widlan, sustained a compensable accident that injured his back on November 23, 1987. Dr. Frankl testified he had treated Claimant from August 15, 1988 through September...