Articles Tagged with 440.13

surgeon-3-391477-mFlorida Statute 440.13 governs the provision of medical care under Florida’s workers’ compensation system. For the most part, the Employer and its insurance carrier — “E/C” — control the provision of medical care.

The most dominant aspect of this control is the right to select the injured worker’s treating doctors. Unfortunately, most of these doctors suffer from the incurable “Don’t Bite the Hand that Feeds You” disease. All too frequently, the opinions expressed by these doctors benefit the E/C to the detriment of the Claimant.

On rare occasions, E/C loses control of the medical. The most frequent situation is where the worker has suffered substantial injuries requiring emergency surgery in the hospital. The natural sequence is that the surgeon, especially if he or she maintains a private practice, will remain the primary physician after the patient is discharged from the hospital. While this doctor is not hand-picked by E/C, he or she is also not hand-picked by the Claimant.

440.13(2)(c) gives E/C a “reasonable time period” to provide initial medical treatment and care. If E/C fails to provide the initial treatment and care, Claimant “may obtain such initial treatment at the expense of the employer.” Even still, E/C can regain control of the medical under this provision. In Carmack v. Department of Agriculture, 31 So.3d 798 (Fla. 1st DCA 2009), Claimant suffered a compensable accident, but E/C refused to authorize medical care for psychiatric issues arising from leg and back injuries. Claimant sought care with a psychiatrist and filed a Petition for Benefits seeking authorization of past and future care with the psychiatrist. The Judge of Compensation Claims (JCC) ordered E/C to pay for treatment through the date of the final hearing (workers’ compensation trial), but not for continuing treatment with the particular doctor. Instead, E/C was able to choose another psychiatrist. The JCC’s ruling was upheld on appeal.

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caduceus-1219484-m-212x300The Oxford Dictionary defines peer review as “a judgment on a piece of scientific or other professional work by others working in the same area.” It is a commonly used procedure with a variety of scientific and medical matters.

Florida’s workers’ compensation statutes are located in Chapter 440. Peer review is referenced at section 440.13(1)(o) as follows:

“Peer review” means an evaluation by two or more physicians licensed under the same authority and with the same or similar specialty as the physician under review, of the appropriateness, quality, and cost of health care and health services provided to a patient, based on medically accepted standards.

There is little other jurisprudential instruction to explain the pertinence of peer review in workers’ compensation cases.

Last week I received a “Peer Review” report from a doctor hired by the workers’ compensation insurance company in one of our cases. In the doctor’s opinion, a shoulder surgery recommended by our client’s authorized doctor “does not meet established treatment standards of medical necessity.” The peer review report was generated in response to a Petition for Benefits we had filed seeking authorization of the surgery. A few days later the workers’ compensation carrier filed a formal response to the Petition for Benefits in which it agreed to authorize the surgery. This is not the first time I’ve experienced a similar about-face involving peer review.

I don’t know why the carrier went to the trouble and expense of this so-called peer review. First, the statute requires the review to be done by “two or more physicians.” This review was done by one physician. Next, while 440.13(r) and (s) express an interest in “Utilization control” and “Utilization review,” neither the statute nor case law instruct how or even whether peer review functions to address utilization concerns or disputed medical benefits.

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