Florida JCC May Not Strike Authorized Physician Because of Fee Dispute

Yesterday, a Florida appellate court held the state’s Workers’ Compensation Code (Code) does not authorize a Judge of Compensation Claims (JCC) to strike a physician authorized by the Employer/Carrier (E/C) under the one-time-change statute, § 440.13(2)(f), Fla. Stat., because the physician’s initial evaluation and treatment fee exceeded the base fee schedule rate [Palm Beach County Sch. Dist. v. Smith, 2022 Fla. App. LEXIS 926 (1st DCA, Feb. 9, 2022)]. The Court stressed that in some situations, the Code expressly allowed for higher-than-fee-schedule arrangements. Moreover, the Code clearly contemplated that disputes over fees would occur and the Code had fully addressed how those disputes were to be resolved. Nothing in the Code gave the responsibility of resolving those disputes to the JCC.

Background

Claimant sought a onetime change in physician.. 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 disagreed and 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.

JCC’s Work Does Not Extend to Resolving Fee Issues

The E/C argued 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. The E/C contended as well that the Code provided no JCC process allowing claimants to disqualify their treating physicians because they were dissatisfied with the fee reimbursement arrangements between the physician and E/C.

The appellate court agreed in relevant part. It indicated:

1. As a jurisdictional matter, the scope of the JCCs work did not extend to resolving disagreements about the terms of fee agreements between E/Cs and treating physicians. Indeed, said the Court, the JCC’s authority did not extend to striking a provider’s authorization because his or her rates exceeded the scheduled rates. That sort of review and resolution had been left to another entity.
2. The Code expressly allowed for higher-than-fee-schedule arrangements. The Court added that here, the JCC had imputed bias in the fee arrangement, taking the view that payments exceeding the fee schedule amount undermined confidence in the neutrality of the authorized provider. The Court stressed, however, that § 440.13(13)(b), Fla. Stat., did not prohibit the E/C and physician from agreeing to higher rates.
3. The statute gave claimants no recourse for litigating complaints before a JCC about the reimbursements passing between E/Cs and authorized treating physicians. The Court said that Claimant’s view would seemingly grant her potentially unlimited “one-time” changes for each billing miscue whenever she could show that a bill exceeded the scheduled rate for the appointment.
4. The Court was unconvinced by Claimant’s argument that an earlier decision, City of Riviera Beach v. Napier, 791 So. 2d 1160 (Fla. 1st DCA 2001), authorized the JCC to strike the one-time-change physician and to grant her pick of physicians. The Court countered that in Napier, however, it had only recognized that a JCC could lawfully discount the testimony of an IME physician who charged more than what the law allowed. This was an affirmation of “the not-too-remarkable proposition that JCCs possess jurisdiction to determine the admissibility of evidence” [Opinion, p. 8].

The Court said the Code contemplated that disputes about fees would occur and the Code had fully addressed how those disputes were to be resolved. In doing so, however, the Code did not afford claimants the option of disqualifying their E/C authorized physician in a proceeding before a JCC. Accordingly, the JCC’s Order was reversed.