Wolk v. Jaylen Homes, Inc., 91-462

• Decision Date: 02 January 1992
• Docket Number: No. 91-462,91-462
• Citation: 593 So.2d 1058
• Parties: 17 Fla. L. Weekly D179 Jerald A. WOLK, Appellant, v. JAYLEN HOMES, INC., Florida Home Builders Self Insurers Fund, Executive Risk Consultants, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 1058

593 So.2d 1058

17 Fla. L. Weekly D179

Jerald A. WOLK, Appellant, v. JAYLEN HOMES, INC., Florida Home Builders Self Insurers

Fund, Executive Risk Consultants, Inc., Appellees.

No. 91-462.

District Court of Appeal of Florida,

First District.

Jan. 2, 1992.

Rehearing Denied March 17, 1992.

Wayne C. McCall of Ayres, Cluster, Curry, McCall & Briggs, P.A., Ocala, for appellant.

William H. Lore, Joseph E. Smith, P.A., Orlando, for appellees.

JOANOS, Chief Judge.

The claimant in this workers' compensation case appeals an order of the judge of compensation claims dismissing his claim for benefits. The dismissal was based on the judge's finding that he lacked jurisdiction to hear the issues raised by appellant's claim. The question raised on appeal is whether the judge of compensation claims has jurisdiction to consider claims for medical benefits, when such benefits have been terminated due to an employer/carrier's determination of overutilization. We reverse.

The record reflects that claimant was injured on March 9, 1984, in the course of his employment with Jaylen Homes, Inc. Dr. LeSavage, chiropractor, was authorized to treat claimant from 1984 until December 1986, when the carrier deauthorized his care. The deauthorization was predicated on a chiropractic physician's opinion, after a review of the file, that chiropractic treatment could not be substantiated beyond 1986. In a letter dated January 30, 1990, employer/carrier offered alternative care. On March 2, 1990, claimant filed a claim for continued treatment by Dr. LeSavage, and for payment of past medical bills from the date of Dr. LeSavage's deauthorization. On the claim for benefits the question to be decided by the judge of compensation claims was stated as "whether the employer was entitled to deauthorize treatment by Dr. LeSavage."

The employer/carrier filed a motion to dismiss on grounds that the judge of compensation claims lacked subject matter jurisdiction to hear the issues raised by the claim for benefits. It was employer/carrier's theory that their medical consultant's opinion raised questions of overutilization. Claimant opposed the motion to dismiss, arguing that at that point, the proceedings involved a pure controversion of a claim for medical benefits. The judge found that due to the employer/self-insured's notice to claimant, and to Cloquet Chiropractic Clinic and Dr. LeSavage, of a finding of overutilization, he did not have subject matter jurisdiction to hear the claim.

The issue in this case falls within the purview of section 440.13, Florida Statutes, which provides in pertinent part:

(2)(a) ... the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance by a health care provider and for such period as the nature of the injury or the process of recovery may require, ... The carrier shall not deauthorize a health care provider furnished by the employer to provide remedial treatment, care, and attendance, without the agreement of the employer, unless a judge of compensation claims determines that the deauthorization of the health care provider is in the best interests of the injured employee, or a determination has been made that the health care provider is overutilizing care. Overutilization review shall be by physicians licensed under the same licensing chapter as the physician reviewed. Overutilization of health care shall be a basis for deauthorizing such care without order of the judge of compensation claims, provided a determination has been made as provided in this section and alternate medical care has been offered by the employer or carrier.

. . . . .

(4)(d)1. The division shall develop and implement, or contract with a qualified entity to develop and implement, utilization review of the services rendered by a health care provider or a physician, which services are paid for in whole or in part pursuant to this chapter. Utilization review shall be accomplished either by request from any interested party or upon the request of the division....