The 2024 Florida Statutes
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. . . right to select the doctor who would serve as her one-time change of physician available under section 440.13 . . . Section 440.13(2)(f) contemplates that the originally authorized physician be "in the same specialty . . .
. . . to address retroactive assignment of maximum medical improvement ("MMI") and the claim that section 440.13 . . . The Claimant contends that section 440.13(4)(c) -the statutory provision giving the E/C the right to . . . Myers, 229 So.3d 1118 (Fla. 2017), and the 2003 amendments to section 440.13(4)(c). . . . The Claimant argues that section 440.13(4)(c) was substantially amended in 2003 and these amendments . . . Accordingly, we find that section 440.13(4)(c), as amended, does not violate the constitutional right . . .
. . . Although section 440.13(9)(c), Florida Statutes (2011), affords an EMA's opinion a presumption of correctness . . . Section 440.13(9)(c) mandates the appointment of an EMA when a disagreement exists between the opinions . . . correct unless there is clear and convincing evidence to the contrary as determined by the [JCC]." § 440.13 . . . A blanket deference is not an EMA opinion for purposes of section 440.13(9)(c). Because Dr. . . .
. . . The JCC rejected the E/C's argument, finding that the EMA statute, section 440.13(9)(c), Florida Statutes . . . the JCC's interpretation of the EMA statute is incorrect because it fails to consider that section 440.13 . . .
. . . physician who practices in the 'same specialty' as the originally authorized doctor" pursuant to section 440.13 . . .
. . . See § 440.13(2)(a), Fla. Stat. (2013). He did so through the testimony of Dr. Varraux. Dr. . . . Section 440.13(9)(c), Florida Statutes, dictates that the JCC "shall" appoint an EMA when there is a . . .
. . . See § 440.13(13)(b), Fla. Stat. . . . See § 440.13(11)(c), Fla. Stat. . . . See § 440.13(3)(a), Fla. Stat. . . . See id. § 440.13(13)(b). . . . See § 440.13(6), (8), Fla. Stat. . . . While section 440.13, Florida Statutes, has been amended so that it no longer requires prior approval . . . medical examination determines that the employee is not making appropriate progress in recuperation." § 440.13 . . .
. . . Section 440.13(5)(e), Florida Statutes (2015), provides the only medical opinion testimony admissible . . . Nevertheless, this court has determined the testimony of a physician other than those enumerated in section 440.13 . . .
. . . basis of allegedly changed circumstances; and that IMEs are available solely as provided in section 440.13 . . . claimant's medical condition "to assist in the resolution of a dispute arising under this chapter." § 440.13 . . . concerning overutilization, medical benefits, compensability, or disability under this chapter." § 440.13 . . .
. . . wrongfully denied medical treatment at the expense of the E/C under the self-help provisions of section 440.13 . . . Contracting Co. , 16 So.3d 958, 962 (Fla. 1st DCA 2009) (holding "where section 440.13(2)(c) applies, . . . But Claimant's burden under the self-help provision of section 440.13(2)(c) was to show that surgery . . . Under section 440.13(5)(e), only medical opinions from authorized providers, independent medical examiners . . .
. . . See § 440.13(9)(c), Fla. Stat. (2013) ; Guerra v. C.A. . . .
. . . Compensation Claims (JCC) denying her request for a "one-time change" of physician as permitted by section 440.13 . . . Section 440.13(2)(f) requires that the one-time change be made with a physician who practices in the . . .
. . . Paragraphs 440.13(5)(c)-(d), Florida Statutes (2010), require the E/C to "confirm the scheduling agreement . . . Paragraph 440.13(5)(c) specifically requires that the carrier provide an employee and the employee's . . . Here, the E/C's notice of the IME did not conform with the statutory notice required by paragraph 440.13 . . .
. . . See § 440.13(9)(c), Fla. Stat. (2013). After Dr. Castello's evaluation, he rated Mr. . . . When there is a disagreement in the medical opinions in a workers' compensation case, § 440.13(9)(c) . . . support this conclusion, the JCC misplaced reliance on the definition of "medicine" under paragraph 440.13 . . .
. . . Section 440.13(2)(d) allows the employer "to transfer the care of an injured employee from the attending . . .
. . . ■Under paragraph 440.13(2)(a), Florida Statutes (2008), an injured employee is entitled to “such medically . . . Under paragraph 440.13(9)(c), Florida Statutes (2008), an EMA must be appointed when “there is a disagreement . . . As noted above, paragraph 440.13(2)(a) specifically requires that the treatment be “medically necessary . . . (Fla. 1st DCA 2009) (explaining that entitlement to all medical treatment is governed by paragraph 440.13 . . .
. . . experts, the E/C requested, and the JCC appointed, an expert medical ad-visor (“EMA”) pursuant to section 440.13 . . . condition, including the preexisting arthritis, as a compensable workplace injury pursuant to section 440.13 . . . Further, regarding section 440.13(l)(b), a break in the causal chain occurred when the E/C’s liability . . .
. . . maximum reimbursable allowance under workers' compensation, as determined under Florida Statutes, § 440.13 . . . maximum reimbursable allowance under workers' compensation, as determined under Florida Statutes, § 440.13 . . . maximum reimbursable allowance under workers' compensation, as determined under Florida Statutes, § 440.13 . . . maximum reimbursable allowance under workers' compensation, as determined under Florida Statutes, § 440.13 . . .
. . . See § 440.13(4)(c), Fla. Stat. (2017). . . .
. . . First, a referral from one health care provider to another requires prior authorization under séction 440.13 . . . to Claimant cost more than $1,000, the E/C were entitled to a ten-day approval period under section 440.13 . . . See also § 440.13(3)(b), Fla. Stat. . . . infection, but these findings do not resolve whether it was “emergency care” within the meaning of section 440.13 . . . met the definition of “emergency services and care” under section 395.002 as referenced in section 440.13 . . .
. . . provides in pertinent part as follows: (7)(a)' Except as otherwise provided in this section and in s. 440.13 . . .
. . . See § 440.13(9)(e), Fla. . . . See § 440.13(9)(c) (“The opinion of the expert medical advisor is presumed to be correct unless there . . .
. . . claimant filed a petition for benefits (PFB) seeking a new orthopedic physician pursuant to section 440.13 . . . The JCC rejected the claimant’s argument that section 440.13(2)© “should be read to say the E/C must . . . Section 440.13(2)© authorizes the claimant to request a change of physician once during the course of . . . Munson — is “the previous physician" for purposes of section 440.13(2)©. . . . permit,” and here, the context of the phrase “the previous physician” within the language of section 440.13 . . .
. . . on the basis that reports of authorized treating physicians may come into evidence pursuant to “F.S. 440.13 . . . Section 440.13(2)(a), Florida Statutes (Supp. 1988), requires the E/C to provide Claimant with medically . . . considered a medical benefit that the JCC could order the E/C to provide under the authority of paragraph 440.13 . . . there was insufficient proof that the FME was “medically necessary” as that phrase is used in section 440.13 . . . claimant requests an FCE (therefore, logically acquiescing to attendance) as a benefit due under section 440.13 . . .
. . . Judge of Compensation Claims (JCC) denying her claim for a one-time change of physician under section 440.13 . . . Section 440.13(2)(f) provides that “[u]pon the written request of the employee, the carrier shall give . . .
. . . See § 440.13(2)(a)-(b), Fla. Stat. (1989). . . . See § 440.13(l)(b), Florida Statutes (1989) (limiting the definition of “physician” to physicians licensed . . . See § 440.13(3)(d), Fla. Stat. (2016). . . . Kowalski, 605 So.2d 885, 888 (Fla. 1st DCA 1992) (citing § 440.13(2)(a), Fla. Stat. . . .
. . . . § 440.13(9)(c), Fla. Stat. . . . However, an EMA opinion is not presumptively correct under § 440.13(9)(c) to the extent that it exceeds . . .
. . . Baylis in accordance with paragraph 440.13(2)(f). . . . Paragraph 440.13(2)(f) provides that upon the grant of a one-time change, the originally authorized physician . . .
. . . opinion into evidence without attributing to it the presumption of correctness prescribed in subsection 440.13 . . .
. . . agreed they failed to respond to his request within five days of its receipt, as required by paragraph 440.13 . . . Under paragraph 440.13(2)(f), a claimant who sustains a compensable injury is entitled to a one-time . . .
. . . . § 440.13(2)(f), Fla. Stat. (2016). . . . Company and Servpro, Inc.) didn’t respond timely to his request for a one-time change under subsection 440.13 . . . Section 440.13(2)© says: Upon the written request of the employee, the carrier shall give the employee . . . This interpretation fails to account for the second sentence of 440.13(2)(f), which specifically provides . . . But section 440.13(2)(f) cannot be read to allow that result simply because an employer/carrier has not . . .
. . . Bd., 97 So.3d 878, 879 (Fla. 1st DCA 2012); see also § 440.13(3)(g), (13)(a), Fla. Stat. (2014). . . .
. . . The E/C objected to the medical opinions in the depositions based on section 440.13(5)(e), Florida Statutes . . . Analysis Section 440.13(5)(e), by its plain language, excludes from workers’ compensation proceedings . . . And section 440.13(2)(c), by its plain language, permits self-help (and thus authorization by operation . . . See Oursler, 113 So.3d at 1009 (“A claimant cannot use medical opinion evidence barred by section 440.13 . . . To permit such bootstrapping would contravene the legislative intent of section 440.13(2)(c)...."). . . .
. . . its obligations, the benefits sought—and more importantly, awarded—must be consistent with section 440.13 . . . Section 440.13(2)(a) provides that the employer shall provide an injured worker with “medically necessary . . .
. . . Board, Sixth Circuit, and bankruptcy court), but he did award Smith $7,280 in attorney’s fees and $440.13 . . .
. . . percent of the maximum reimbursable allowance under workers’ compensation,' as determined under s. 440.13 . . .
. . . See § 440.13(2)(f), Fla. Stat. (2009); see also Butler v. Bay Ctr./Chubb Ins. . . . See §§ 440.09(1), 440.13(14)(c), Fla. Stat. (2009). . . . compensation shall be allowed for the first 7 days of the disability, except benefits provided for in s. 440.13 . . .
. . . care'awarded by the judge of- compensation claims (JCC), and (2) the constitutionality of the section 440.13 . . . Accordingly, section 440.13(2)(b)T. does not contravene article X, section 24. . . .
. . . Section 440.13(9), Florida Statutes (2013), the provision addressing EMAs, provides in subsection (a) . . . resolving disputes relating to reimbursement, differing opinions of health care providers .... ” § 440.13 . . . part: When there is a conflict in the medical evidence submitted at the hearing, the provisions of s. 440.13 . . . examination and testimony may be assessed as costs in the proceeding, subject to the provision of s. 440.13 . . . treating physician” whose testimony concerning the claimant’s shoulder was admissible under section 440.13 . . .
. . . See § 440.13(l)(j), Fla. Stat. (2011). And even though Dr. . . . Timeliness of EMA request The EMA statute- does not set a deadline for EMA requests. § 440.13(9)(c), . . . EMA must pay for it; in contrast, when a JCC sua sponte appoints an EMA, the cost falls on the E/C. § 440.13 . . .
. . . Under paragraph 440.13(2)(a), Florida Statutes (2013), employers are required to furnish “such medically . . . “any medical service or-medical supply which is used to identify or treat an illness or injury.” § 440.13 . . .
. . . Paragraph 440.13(9)(c), Florida Statutes (2013), provides that an EMA is appointed when “there is a disagreement . . .
. . . . § 440.13(5)(e), Fla. Stat. (2013). See also Cespedes v. . . . ) (holding proof of compensable emergency care requires medical opinion admissible under subsection 440.13 . . . establish the second hospitalization as emergency services, as was concluded by the JCC-(under sections 440.13 . . .
. . . , even if based on an untimely request, would be in contravention of the plain language of sections 440.13 . . .
. . . Claims (JCC) denying him a one-time change in authorized treating physician, as' permitted - by section 440.13 . . . reverse the order on appeal and remand to the JCC for the award of a one-time change under section 440.13 . . .
. . . See §§ 440.09, 440.13, Fla. Stat. (2011). . . .
. . . deemed to have timely responded to claimant’s request for a one-time change of physician under section 440.13 . . . Section 440.13(2)00, Florida Statutes (2013), allows the E/C only five days to respond to a request for . . . however, counsel inserted a request for a one-time change of treating physician pursuant to section 440.13 . . . compensation statutory scheme, a claimant’s request for a one-time change of physician under section 440.13 . . .
. . . Because the JCC’s interpretation of section 440.13(3)(i), Florida Statutes (2011), was erroneous, we . . . However, this Court has previously held that section 440.13(3)(i) requires a. carrier to respond to a . . . Beverage Co., 132 So.3d 1191, 1193 (Fla. 1st DCA 2014) (“Under sections 440.13(3)(d) and (i), an employer . . .
. . . Stat. (2011) (in part providing “[ejxcept as otherwise provided in this section and in s. 440.13(4)(c . . .
. . . deposition fee of the expert medical advisor (EMA) to $200 per hour, the amount referenced in section 440.13 . . . because “the EMA is not a mere health care provider, but an expert,” the fee limitation in section 440.13 . . . Section 440.13(9)(a) requires that “the qualifications, training, impartiality, and commitment of the . . . Accordingly, nothing in sections 440.13 or 440.25 supports the JCC’s conclusion. . . . Rozencwaig’s deposition fee be limited to that permitted by section 440.13(10). . . . appellate remedy because the improperly charged fee — which here is expressly prohibited by section 440.13 . . .
. . . daily attendant care from his wife, which is the maximum allowable from a family member under section 440.13 . . . “Family member” means a spouse.... § 440.13(l)(b), Fla. Stat. (2013). . . .
. . . (substantially rewriting section 440.13, Florida Statutes); Ch. 03-412, § 18, at 3920-24, Laws of Fla . . .
. . . See § 440.13(2)(a), Fla. Stat. (2013). . . .
. . . See § 440.13(2)(a), Fla. . . . Stat. (2006) (requiring employer to furnish medically necessary care); § 440.13(1)0), Fla. . . .
. . . of Compensation Claims that appoints an expert medical advisor (EMA) under the authority of section 440.13 . . .
. . . An EMA’s opinion is presumed correct, see section 440.13(9), Florida Statutes (“The opinion of the expert . . .
. . . Roush is compensa-ble, the JCC erred in excluding, under section 440.13(5)(e), Florida Statutes, Dr. . . .
. . . to request authorization for the kidney surgery was excused under the self-help provision of section 440.13 . . . Because we find that the E/C is not legally responsible under section 440.13(2)(c) for the medical bills . . . The JCC found section 440.13(2)(c) applicable based solely on his determination that the E/C wrongfully . . . Section 440.13(2)(c) expressly provides, however, that “[t]here must be a specific request for the initial . . . Contracting Co., 16 So.3d 958, 962 (Fla. 1st DCA 2009) (holding that section 440.13(2)(c) operates in . . .
. . . Section 440.13(5)(d), Florida Statutes (2012), requires an injured employee to reimburse the E/C half . . . See § 440.13(12)(d), Fla. . . . then determine (a) whether Claimant should be assessed half of the doctor’s no-show fee under section 440.13 . . .
. . . Here, the relevant section is 440.13(2)(c), Florida Statutes (2010): If the employer fails to provide . . . The underlined portion of section 440.13(2)(c) is an exception to the general rule, detailed earlier . . . physician and obtain treatment, provided the care is ‘compensable and medically necessary.’ ” (quoting § 440.13 . . .
. . . liable for, and shall secure, the payment to his or her employees ... the compensation payable under ss. 440.13 . . .
. . . See § 440.13(9)(c), Fla. Stat. (2010). . . .
. . . competent substantial evidence (CSE) supporting the JCC’s determination and is consistent with section 440.13 . . .
. . . simply rendered her own unqualified and unsubstantiated medical opinion, which is contrary to section 440.13 . . . See §§ 440.13(9)(c) & 440.25(4)(d), Fla. Stat. . . . Section 440.13(2)(a), Florida Statutes (2011), requires that the employer furnish such medically necessary . . . treat an illness or injury, and is appropriate to the patient’s diagnosis and status of recovery. § 440.13 . . . . § 440.13(k), Fla. Stat. (2014). . . . Preferable, perhaps; but section 440.13(2)(a), Florida Statutes (2011), requires that recommended treatment . . .
. . . 7)(a) provides in pertinent part as follows: Except as otherwise provided in this section and in s. 440.13 . . .
. . . and given this court’s prior analogous holding that a “one-time” change of physician under section 440.13 . . .
. . . Compensation Claims does not have jurisdiction over reimbursement dispute actionable under section 440.13 . . .
. . . choice of doctor to serve as the “one-time change” of physician to which he is entitled under section 440.13 . . . On October 22, 2012, Claimant requested a one-time change of physician pursuant to section 440.13, Florida . . . The substantive benefit provided in section 440.13(2)(f) is a claimant-initiated, one-time change of . . .
. . . . § 440.13(4)(a), (c). . . .
. . . theory that he was entitled to elect a pain management physician in lieu of a surgeon under section 440.13 . . . f), Florida Statutes (2011), and so leave intact his prerogative to invoke his rights under section 440.13 . . . Under sections 440.13(3)(d) and (i), an employer or carrier “forfeits the right to contest” the medical . . . carrier is not required to grant the request for a referral within the times specified in sections 440.13 . . . We affirm the denial of the claim for a one-time change in physician under section 440.13(2)(f). . . .
. . . for, and shall secure, the payment to his or her employees ... of the compensation payable under ss. 440.13 . . .
. . . The statutory authority for an independent medical examination exists under section 440.13(5)(a), Florida . . . Section 440.13(5)(a), Florida Statutes (2003), provides in part that “[t]he employer and employee shall . . . There is an exception, under subsection 440.13(5)(b), which provides that each party is entitled to “ . . .
. . . See § 440.13(3)(a), Fla. Stat. (2005). . . . . § 440.13(3)(b), Fla. Stat. (2005). . . . See § 440.13(3)(a)-(b), Fla. Stat. (2005). . . . See § 440.13(11)(c), Fla. . . . We observe that in section 440.13(3)(a), but not in section 440.13(5)(e), the Legislature qualified the . . .
. . . The JCC here appointed an EMA under section 440.13(9), Florida Statutes (2008), to resolve a conflict . . . correct “unless there is clear and convincing evidence to the contrary as determined by the [JCC].” § 440.13 . . .
. . . Legal Background Section 440.13(9), Florida Statutes (2008), is entitled “Expert Medical Advis- or.” . . . EMA is “to assist the ... judges of compensation claims within the advisor’s area of expertise.” § 440.13 . . . those instances in which “there is a disagreement in the opinions of the health care providers.” § 440.13 . . . ] is needed to resolve the dispute, the carrier must compensate the advisor for his or her time.” § 440.13 . . . Section 440.13(9)(f) provides that in such an instance, where the JCC directs that the evaluation take . . .
. . . . §§ 440.13(9)(c) & 440.25(4)(d), Fla. Stat.; Romero v. . . . would be legally required to appoint an Expert Medical Advisor (“EMA”) to resolve the conflict. §§ 440.13 . . .
. . . .” § 440.13(9), Fla. Stat. (2009). . . .
. . . authorized treating physician following Claimant’s request for a one-time change pursuant to section 440.13 . . . authorized treating physician as the Employer/Carrier complied with the statutory provision of F.S. § 440.13 . . . Claimant of a particular doctor’s name within five days of receiving the request satisfied section 440.13 . . . that unilateral notice to Jacksonville Orthopaedic Institute was sufficient to comply with section 440.13 . . .
. . . 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s.440.13 . . .
. . . jurisdiction to compel attendance when there is a question of overutilization, pursuant to sections 440.13 . . . Second, we recognize that under section 440.13, Florida Statutes (2001), either party may obtain an IME . . . “[i]n any dispute concerning overutilization, medical benefits, compensability, or disability.” § 440.13 . . . See § 440.13(6) and (7), Fla. Stat. (2001). . . . See § 440.13(5)(a), Fla. Sta. (2001). . . .
. . . 80 percent of the maximum reimbursable allowance under worker’s compensation, as determined under s. 440.13 . . .
. . . Here, the applicable version of section 440.13(2)(c) requires Claimant to prove that the care at issue . . . Additionally, both versions of section 440.13(2)(c) require a claimant seeking “to recover any amount . . . And third, section 440.13(5)(e) excludes only medical opinions from certain sources, not testimony or . . . A claimant cannot use medical opinion evidence barred by section 440.13(5)(e) to “bootstrap” itself — . . . Once the provider of care in controversy becomes an authorized provider, however, section 440.13(5)(e . . .
. . . .” § 440.13(3)(b), Fla. Stat. (2010). . . .
. . . According to the plan outlined in section 440.13, Florida Statutes, workers’ compensation physicians . . . employers’ compensation insurance carriers based on the pharmacy fee schedule set forth in section 440.13 . . . If the provider chooses to challenge the reimbursement amount, or the refusal to reimburse, section 440.13 . . . The Department concluded that section 440.13(7)(a) “expressly authorizes only health care providers, . . . There is nothing in Section 440.13(7), Fla. . . .
. . . . § 440.13(5). . . .
. . . Khan was properly deau-thorized by the employer/carrier under section 440.13(2)(d), Florida Statutes . . .
. . . See § 440.13(3)(c), Fla. Stat. (2006); see also Amos v. . . .
. . . I concur in affirmance of the JCC’s order granting a one-time change of physician under section 440.13 . . . Compensation Claims (JCC) to the extent it awards Claimant a one-time change of physician, under section 440.13 . . .
. . . appeals an order of the Judge of Compensation Claims (JCC) in which he ruled that the “5 days” in section 440.13 . . . Seen another way, because the Legislature specified “business days” elsewhere in section 440.13, canons . . .
. . . Analysis Section 440.13(9)(c), Florida Statutes (2008), mandates that the JCC appoint an EMA when there . . . See § 440.13(9)(c), Fla. Stat. (2004); see also Mobile Med. Indus, v. . . .
. . . never made a request for the JCC to appoint an expert medical advisor (EMA) as provided for in section 440.13 . . .
. . . currently amended, states in relevant part: (7)(a) Except as otherwise provided in this section and in s. 440.13 . . .
. . . jointly the Employer/Carrier (E/C), of Claimant’s two authorized treating physicians pursuant to section 440.13 . . . Claimant had reached maximum medical improvement (MMI) and was receiving only palliative care, section 440.13 . . . The E/C further asserted that Claimant had not made appropriate progress under section 440.13(2)(c), . . . Analysis Section 440.13(2)(d), Florida Statutes (2011), provides that “[t]he carrier has the right to . . . See § 440.13(11)(c), Fla. . . .
. . . The JCC declined to apply section 440.13(10), Florida Statutes (2007) (establishing amount health care . . . The JCC erred in finding that section 440.13(10) was not applicable to the dispute before him. . . . On remand, their fees should be calculated according to the section 440.13(10) guides. . . . As stated above, the JCC abused his discretion in failing to apply section 440.13(10). 2. . . . Section 440.13 addresses “no-show” fees only in relation to IMEs. . . .
. . . liable for, and shall secure, the payment to his or her employees ... the compensation payable under ss. 440.13 . . .
. . . See also § 440.13(5)(a), Fla. Stat. (2009). . . .
. . . We agree, and hold that assertion of this jurisdictional defense (codified at section 440.13(ll)(c), . . . , if any entity is financially responsible for these disputed bills, it is the carrier (per section 440.13 . . . Florida Statutes (1994)), and Claimant is thereby insulated from financial responsibility (per section 440.13 . . . It follows from that finding, though, that section 440.13(3)(g) insulates Claimant from financial responsibility . . .
. . . 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 . . . B to 80% of the “maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 . . .
. . . Florida Statute section 456.057(7)(a) provides: Except as otherwise provided in this section and in s. 440.13 . . .
. . . Claims (JCC) awarding Claimant her own selection of a “one-time” change of physician under section 440.13 . . . that Claimant’s purported petition for benefits constituted the “written request” required by section 440.13 . . . in finding the Employer/Carrier (E/C) did not comply with the request within the five days section 440.13 . . . Claimant of a particular doctor’s name within five days of receiving the request satisfied section 440.13 . . .