39 Fla. L. Weekly D259a
Workers’ compensation — Temporary partial disability —
Error to fail to rule on claim for temporary partial disability beginning on
specified date and continuing given uncontested evidence that claimant had not
reached maximum medical improvement at time of hearing and that he was medically
restricted from performing his work for employer during period at issue —
Medical benefits — Pain management — Medical necessity — Error to deny
authorized surgeon’s recommendation that claimant be referred to pain management
specialist on basis that pain management referral was not warranted or required
without determining whether employer or carrier timely responded to surgeon
within 10 days of receiving surgeon’s recommendation — If on remand, JCC finds
employer/carrier did not respond in timely fashion, claimant should be awarded
evaluation with pain management specialist — If claimant is not awarded
evaluation with pain management specialist on account of lack of timely response
to surgeon’s recommendation, JCC should then determine, apart from any question
of medical necessity, whether carrier responded to medical center’s separate,
independently written recommendation for evaluation by pain management
specialist within 10 days of receipt of that recommendation — No error in
denying alternate claim for one-time change in physician to enable claimant to
elect pain management physician in lieu of surgeon
Error to fail to rule on claim for temporary partial disability beginning on
specified date and continuing given uncontested evidence that claimant had not
reached maximum medical improvement at time of hearing and that he was medically
restricted from performing his work for employer during period at issue —
Medical benefits — Pain management — Medical necessity — Error to deny
authorized surgeon’s recommendation that claimant be referred to pain management
specialist on basis that pain management referral was not warranted or required
without determining whether employer or carrier timely responded to surgeon
within 10 days of receiving surgeon’s recommendation — If on remand, JCC finds
employer/carrier did not respond in timely fashion, claimant should be awarded
evaluation with pain management specialist — If claimant is not awarded
evaluation with pain management specialist on account of lack of timely response
to surgeon’s recommendation, JCC should then determine, apart from any question
of medical necessity, whether carrier responded to medical center’s separate,
independently written recommendation for evaluation by pain management
specialist within 10 days of receipt of that recommendation — No error in
denying alternate claim for one-time change in physician to enable claimant to
elect pain management physician in lieu of surgeon
JOSE JUAN ANDINO-RIVERA, Appellant, v. SOUTHEAST ATLANTIC BEVERAGE COMPANY/
GALLAGHER BASSETT SERVICES, INC., Appellees. 1st District. Case No. 1D13-0598.
Opinion filed February 4, 2014. An appeal from an order of the Judge of
Compensation Claims. Doris E. Jenkins, Judge. Date of Accident: October 14,
2011. Counsel: Michael J. Winer of the Law Office of Michael J. Winer, P.A.,
Tampa, for Appellant. Hillarey A. McCall of Harbsmeier DeZayas, LLP, Lakeland,
for Appellees.
GALLAGHER BASSETT SERVICES, INC., Appellees. 1st District. Case No. 1D13-0598.
Opinion filed February 4, 2014. An appeal from an order of the Judge of
Compensation Claims. Doris E. Jenkins, Judge. Date of Accident: October 14,
2011. Counsel: Michael J. Winer of the Law Office of Michael J. Winer, P.A.,
Tampa, for Appellant. Hillarey A. McCall of Harbsmeier DeZayas, LLP, Lakeland,
for Appellees.
(BENTON, J.) On appeal from a compensation order denying all relief, Jose
Juan Andino-Rivera contends he proved he was entitled to temporary partial
disability benefits and, on two different theories, to medical evaluation and
possible care from a pain management specialist. We reverse with directions to
award temporary partial disability benefits for April 16, 2012, and continuing;
and with directions that the judge of compensation claims make findings as to
whether and, if so, when appellees responded to either of the authorized
physicians’ requests that a pain management specialist be authorized, as well.
We reject appellant’s alternative theory that he was entitled to elect a pain
management physician in lieu of a surgeon under section 440.13(2)(f), Florida
Statutes (2011), and so leave intact his prerogative to invoke his rights under
section 440.13(2)(f) in appropriate circumstances in the future.
Juan Andino-Rivera contends he proved he was entitled to temporary partial
disability benefits and, on two different theories, to medical evaluation and
possible care from a pain management specialist. We reverse with directions to
award temporary partial disability benefits for April 16, 2012, and continuing;
and with directions that the judge of compensation claims make findings as to
whether and, if so, when appellees responded to either of the authorized
physicians’ requests that a pain management specialist be authorized, as well.
We reject appellant’s alternative theory that he was entitled to elect a pain
management physician in lieu of a surgeon under section 440.13(2)(f), Florida
Statutes (2011), and so leave intact his prerogative to invoke his rights under
section 440.13(2)(f) in appropriate circumstances in the future.
Mr. Andino-Rivera suffered two compensable injuries as a result of his
compensable workplace accident on October 14, 2011 — a lumbar strain and an
inguinal hernia. The employer’s insurance carrier (Gallagher) authorized
Lakeside Occupational Medical Centers (Lakeside) and Dr. Hirsch, a general
surgeon who repaired Claimant’s hernia surgically. After the surgery, Dr. Hirsch
made a written recommendation on January 31, 2012, that Mr. Andino-Rivera be
referred to a pain management specialist, a recommendation the adjuster
acknowledged receiving on February 9, 2012. Separately, on April 16, 2012,
Lakeside recommended evaluation by a pain management specialist, a
recommendation Southeast Atlantic Beverage Company (Southeast) conceded it
received the following day.
compensable workplace accident on October 14, 2011 — a lumbar strain and an
inguinal hernia. The employer’s insurance carrier (Gallagher) authorized
Lakeside Occupational Medical Centers (Lakeside) and Dr. Hirsch, a general
surgeon who repaired Claimant’s hernia surgically. After the surgery, Dr. Hirsch
made a written recommendation on January 31, 2012, that Mr. Andino-Rivera be
referred to a pain management specialist, a recommendation the adjuster
acknowledged receiving on February 9, 2012. Separately, on April 16, 2012,
Lakeside recommended evaluation by a pain management specialist, a
recommendation Southeast Atlantic Beverage Company (Southeast) conceded it
received the following day.
The judge of compensation claims failed to rule on appellant’s claim for
temporary partial disability benefits beginning on April 16, 2012, and
continuing. Based on uncontested findings (and in the absence of any affirmative
defense), Mr. Andino-Rivera was entitled to temporary partial disability
benefits for the period in question. See § 440.15(4)(a), Fla. Stat.
(2011) (“Benefits shall be payable . . . only if overall maximum medical
improvement has not been reached and the medical conditions resulting from the
accident create restrictions on the injured employee’s ability to return to
work.”). The finding that he had not reached maximum medical improvement at the
time of hearing is not challenged here. Neither is the finding that medical
personnel at Lakeside restricted him from performing his work for Southeast (in
the course of an evaluation that was, according to unchallenged findings of the
judge of compensation claims, “clearly related to [his] industrial injury”)
beginning on April 16, 2012, and continuing. Accordingly, we reverse the order
under review insofar as it denies compensation benefits, and remand for entry of
an order awarding temporary partial disability benefits beginning on April 16,
2012.
temporary partial disability benefits beginning on April 16, 2012, and
continuing. Based on uncontested findings (and in the absence of any affirmative
defense), Mr. Andino-Rivera was entitled to temporary partial disability
benefits for the period in question. See § 440.15(4)(a), Fla. Stat.
(2011) (“Benefits shall be payable . . . only if overall maximum medical
improvement has not been reached and the medical conditions resulting from the
accident create restrictions on the injured employee’s ability to return to
work.”). The finding that he had not reached maximum medical improvement at the
time of hearing is not challenged here. Neither is the finding that medical
personnel at Lakeside restricted him from performing his work for Southeast (in
the course of an evaluation that was, according to unchallenged findings of the
judge of compensation claims, “clearly related to [his] industrial injury”)
beginning on April 16, 2012, and continuing. Accordingly, we reverse the order
under review insofar as it denies compensation benefits, and remand for entry of
an order awarding temporary partial disability benefits beginning on April 16,
2012.
Under sections 440.13(3)(d) and (i), an employer or carrier “forfeits the
right to contest” the medical necessity of an authorized doctor’s referral for
(additional) medical treatment, unless the employer or carrier responds to the
authorized doctor’s written request for a referral within the time allowed.
Elmer v. Southland Corp./7-11, 5 So. 3d 754, 756 (Fla. 1st DCA 2009).
Although a carrier is not required to grant the request for a referral within
the times specified in sections 440.13(3)(d) (three days) and (i) (ten days), it
must respond to each written request within the time prescribed. As an incentive
for prompt responses, the carrier is deemed to agree to the medical necessity of
the referral, in the absence of a timely grant or denial. See id.
right to contest” the medical necessity of an authorized doctor’s referral for
(additional) medical treatment, unless the employer or carrier responds to the
authorized doctor’s written request for a referral within the time allowed.
Elmer v. Southland Corp./7-11, 5 So. 3d 754, 756 (Fla. 1st DCA 2009).
Although a carrier is not required to grant the request for a referral within
the times specified in sections 440.13(3)(d) (three days) and (i) (ten days), it
must respond to each written request within the time prescribed. As an incentive
for prompt responses, the carrier is deemed to agree to the medical necessity of
the referral, in the absence of a timely grant or denial. See id.
In the present case, the claimant cited the foregoing legal authority,
specifically arguing that Gallagher had waived or forfeited the right to deny
the medical necessity of a pain management referral by failing to respond on two
separate occasions to two separate, written recommendations by two different,
authorized medical providers. The judge of compensation claims denied the
request for a referral to a pain management specialist, however, based on the
stated ground that pain management was not “warranted” or “required.” No
findings were made as to how, or when (if ever), Southeast or Gallagher
responded to the authorized, referring medical providers, as required by section
440.13(3)(i). We can only interpret the judge’s decision to deny as having been
based on a conclusion that there was no medical necessity for the
referral.1
specifically arguing that Gallagher had waived or forfeited the right to deny
the medical necessity of a pain management referral by failing to respond on two
separate occasions to two separate, written recommendations by two different,
authorized medical providers. The judge of compensation claims denied the
request for a referral to a pain management specialist, however, based on the
stated ground that pain management was not “warranted” or “required.” No
findings were made as to how, or when (if ever), Southeast or Gallagher
responded to the authorized, referring medical providers, as required by section
440.13(3)(i). We can only interpret the judge’s decision to deny as having been
based on a conclusion that there was no medical necessity for the
referral.1
The judge of compensation claims erred by not determining whether Southeast
or Gallagher timely
or Gallagher timely
responded to Dr. Hirsch within ten days2 of receiving Dr. Hirsch’s recommendation.
Betancourt v. Sears Roebuck & Co., 693 So. 2d 680, 682 (Fla. 1st DCA
1997) (explaining that the court will “consider the JCC’s failure to rule
reversible error based on the JCC’s noncompliance with the duty to adjudicate
all issues that are ripe for adjudication”). If not, the question of medical
necessity is moot. Accordingly, we reverse and remand for additional proceedings
based on the record already established (without taking additional evidence) for
the judge of compensation claims to make findings of fact as to when and how, if
at all, Southeast or Gallagher responded to Dr. Hirsch’s January 31, 2012
recommendation for referral to a pain management specialist. If the judge of
compensation claims finds that neither the carrier nor the employer did respond
to Dr. Hirsch in a timely fashion, Mr. Andino-Rivera should be awarded an
evaluation with a pain management specialist. See Elmer, 5 So. 3d
at 756.
Betancourt v. Sears Roebuck & Co., 693 So. 2d 680, 682 (Fla. 1st DCA
1997) (explaining that the court will “consider the JCC’s failure to rule
reversible error based on the JCC’s noncompliance with the duty to adjudicate
all issues that are ripe for adjudication”). If not, the question of medical
necessity is moot. Accordingly, we reverse and remand for additional proceedings
based on the record already established (without taking additional evidence) for
the judge of compensation claims to make findings of fact as to when and how, if
at all, Southeast or Gallagher responded to Dr. Hirsch’s January 31, 2012
recommendation for referral to a pain management specialist. If the judge of
compensation claims finds that neither the carrier nor the employer did respond
to Dr. Hirsch in a timely fashion, Mr. Andino-Rivera should be awarded an
evaluation with a pain management specialist. See Elmer, 5 So. 3d
at 756.
Separate and apart from the pain management referral made by Dr. Hirsch, the
evaluating medical personnel at Lakeside made a report dated April 16, 2012,
indicating that Mr. Andino-Rivera should refrain from working until such time as
he was evaluated by a pain management specialist. If the claimant is not awarded
an evaluation with a pain management specialist on account of a lack of timely
response to Dr. Hirsch’s recommendation, the judge of compensation claims should
determine, on remand, again apart from any question of medical necessity,
whether the Carrier responded to Lakeside within ten days of receipt3 of the April 16, 2012 written recommendation for a
pain management specialist. See Betancourt, 693 So. 2d at 682.
evaluating medical personnel at Lakeside made a report dated April 16, 2012,
indicating that Mr. Andino-Rivera should refrain from working until such time as
he was evaluated by a pain management specialist. If the claimant is not awarded
an evaluation with a pain management specialist on account of a lack of timely
response to Dr. Hirsch’s recommendation, the judge of compensation claims should
determine, on remand, again apart from any question of medical necessity,
whether the Carrier responded to Lakeside within ten days of receipt3 of the April 16, 2012 written recommendation for a
pain management specialist. See Betancourt, 693 So. 2d at 682.
Accordingly, we reverse and remand for additional proceedings based on the
record already established (without taking additional evidence) for the judge of
compensation claims to make findings of fact as to when the carrier received the
April 16, 2012 recommendation from Lakeside, and as to when and how the carrier
responded to Lakeside regarding the April 16, 2012 recommendation for a pain
management specialist.4 If on remand the
judge of compensation claims finds that the carrier did not timely respond to
the Lakeside referral, Mr. Andino-Rivera shall be awarded an evaluation with an
authorized pain management specialist. See Elmer, 5 So. 3d at 756.
record already established (without taking additional evidence) for the judge of
compensation claims to make findings of fact as to when the carrier received the
April 16, 2012 recommendation from Lakeside, and as to when and how the carrier
responded to Lakeside regarding the April 16, 2012 recommendation for a pain
management specialist.4 If on remand the
judge of compensation claims finds that the carrier did not timely respond to
the Lakeside referral, Mr. Andino-Rivera shall be awarded an evaluation with an
authorized pain management specialist. See Elmer, 5 So. 3d at 756.
We affirm the denial of the claim for a one-time change in physician under
section 440.13(2)(f). We reverse the unexplained denial of an evaluation by a
pain management specialist sought under section 440.13(3)(i), and the denial of
temporary partial disability benefits beginning April 16, 2012. We also reverse
the denial of penalties and interest for the disability benefits, and the denial
of attorney’s fees and costs, as to all issues except the section 440.13(2)(f)
claim.
section 440.13(2)(f). We reverse the unexplained denial of an evaluation by a
pain management specialist sought under section 440.13(3)(i), and the denial of
temporary partial disability benefits beginning April 16, 2012. We also reverse
the denial of penalties and interest for the disability benefits, and the denial
of attorney’s fees and costs, as to all issues except the section 440.13(2)(f)
claim.
Affirmed in part, reversed in part, and remanded. (LEWIS, C.J. and SWANSON,
J., CONCUR.)
J., CONCUR.)
__________________
1The argument that the judge of
compensation claims did not deny the claim for an evaluation with a pain
management specialist on the grounds of medical necessity finds no support in
the record. We do not reach the question of medical necessity because it is
irrelevant to any issue on appeal.
compensation claims did not deny the claim for an evaluation with a pain
management specialist on the grounds of medical necessity finds no support in
the record. We do not reach the question of medical necessity because it is
irrelevant to any issue on appeal.
2At oral argument held in this case,
counsel for the claimant conceded that, because Dr. Hirsch requested the
authorization of a specialist, the ten-day response period provided for in
section 440.13(3)(i) pertains.
counsel for the claimant conceded that, because Dr. Hirsch requested the
authorization of a specialist, the ten-day response period provided for in
section 440.13(3)(i) pertains.
3A representative of Southeast testified
that Southeast received the April 16, 2012 recommendation for a pain management
specialist on April 17, 2012. The claims adjuster handling the file testified
that she also received this written recommendation, albeit at a later date.
that Southeast received the April 16, 2012 recommendation for a pain management
specialist on April 17, 2012. The claims adjuster handling the file testified
that she also received this written recommendation, albeit at a later date.
4If a pain management evaluation is awarded
based on Dr. Hirsch’s January 31, 2012 recommendation, the judge of compensation
claims need not address the second, separate recommendation for a pain
management specialist. If, however, the judge of compensation claims finds the
carrier timely responded to Dr. Hirsch, the judge of compensation claims shall
then address whether the carrier timely responded to the second, separate
recommendation for a pain management specialist.
based on Dr. Hirsch’s January 31, 2012 recommendation, the judge of compensation
claims need not address the second, separate recommendation for a pain
management specialist. If, however, the judge of compensation claims finds the
carrier timely responded to Dr. Hirsch, the judge of compensation claims shall
then address whether the carrier timely responded to the second, separate
recommendation for a pain management specialist.
* * *