This document summarizes medical benefits under Florida's workers' compensation laws. It discusses topics like medical treatment, independent medical examinations, expert medical advisors, attendant care, chiropractic care, and managed care. Key points include that medical care must be reasonable, medically necessary, related to the accident, and performed by a licensed physician. The employer is responsible for furnishing medical treatment, and has the initial right to select the treating physician. A claimant has a right to one-time change of physician, and if not provided treatment in a reasonable time, a claimant can select their own physician with the employer paying.

1. Medical Benefits
By: BRIAN B. BOLTON
Florida Bar Board Certified
Workers’ Compensation Law
Preeminent Lawyer,
Lexis Nexis Bar Register
Florida Super Lawyer, 2007-2011

2. Medical Benefits
F.S. 440.13 & F.S.440.134

3. Topics of Discussion
• Medical Treatment
• Independent Medical Examination (IME)
• Expert Medical Advisor (EMA)
• Attendant Care
• Chiropractic Care
• Managed Care

4. Generally
Medical Care Must Be:
1. Reasonable
2. Medically necessary
3. Related to the accident
4. Performed by a licensed physician per
440.13(1)(d) and certified by DFS (Also
known as the “The Department” (440.02(3)
means the Department of Financial
Services-not AHCA as of 7/1/08.)

5. Diagnostic Testing To
Determine Cause Is
Compensable
In Chance v. Polk County School Board, 34
FLW D421b (Fla. 1st DCA, 2/23/09), The First
District Court of Appeals held that diagnostic
testing to determine the cause of
symptoms, in this instance an MRI, was
compensable even if the claimant had not
established that an accident was the MCC of
the claimant’s symptoms.

6. Hindrance To Recovery Theory
A claimant is entitled under this theory only to
that treatment of a non-compensable condition
if same is necessary to effectively treat the
compensable accident and related condition(s).
See City of Miami v. Korostishevski, 627 So. 2d
1242, 1244-45 (Fla. 1st DCA 1993)

7. Hindrance To Recovery Theory
(Continued)
The hindrance to recovery theory makes
treatment or assistance compensable only to
the extent treatment or assistance is
necessary for compensable injuries, not
generally to keep a claimant healthy and
safe. See Tyson v. Palm Beach County School
Board, 913 So. 2d 105 (Fla. 1st DCA 2005).

8. Hindrance To Recovery Theory
(Continued)
Treatment of the non-compensable condition
does not necessarily require the payment of
indemnity when the non-compensable
condition is being evaluated and/or treated.

9. Hindrance To Recovery Theory
(Continued)
Payment of Indemnity only if accident
caused compensable injury-
F.S.440.09(1)The employer must pay
compensation or furnish benefits
required by this chapter if
the employee suffers an accidental
compensable injury or death arising out
of work performed in the course and the
scope of employment.

10. Abnormal Findings Not
Enough
(16) STANDARDS OF CARE.--The following
standards of care shall be followed in providing
medical care under this chapter:
(a) Abnormal anatomical findings alone, in the
absence of objective relevant medical findings, shall
not be an indicator of injury or illness, a
justification for the provision of remedial medical
care or the assignment of restrictions, or a
foundation for limitations.

11. Duty To Furnish Medical Care
440.13 (2) MEDICAL TREATMENT; DUTY OF
EMPLOYER TO FURNISH.--
(a) Subject to the limitations specified elsewhere in
this chapter, the employer shall furnish to the
employee such medically necessary remedial
treatment, care, and attendance for such period as
the nature of the injury or the process of recovery
may require, which is in accordance with established
practice parameters and protocols of treatment…

12. Carrier Chooses The Doctor
Butler v. Bay Center/Chubb Ins. Co., 947 So.2d
570 (Fla. 1st DCA 2006), the 1st DCA noted
that Section 440.13, Florida Statutes
(2005), grants the Employer/Carrier the initial
right and duty to select the claimant's treating
physician.

13. Carrier’s Obligation To
Designate The Doctor
To timely respond to a claimant's request, an E/C is not
required to schedule an appointment with the newly
authorized physician. See Dorsch v. Hunt, 15 So.3d 836
(Fla. 1st DCA 2009) (explaining E/C is not required to
actually schedule an appointment to comply with its
statutory duty to furnish medical treatment at
claimant's request). The E/C is required to specify the
name of the doctor. See Harrell v. Citrus County
School Bd., 25 So.3d 675 (Fla. 1st DCA 2010).

14. Failure To Furnish-Claimant
Chooses
The claimant may only obtain initial
treatment with the physician of his own
choosing "after the E/C fails to provide initial
treatment or care within a reasonable time
after the claimant's specific request has been
made known to the E/C." See Section
440.12(2)(c), Florida Statutes (2005). See
Butler v. Bay Center/Chubb Ins. Co., 947
So.2d 570 (Fla. 1st DCA 2006).

15. Failure To Furnish-Carrier
Pays
(c) If the employer fails to provide initial
treatment or care required by this section after
request by the injured employee, the employee
may obtain such initial treatment at the
expense of the employer, if the initial treatment
or care is compensable and medically necessary
and is in accordance with established practice
parameters and protocols of treatment as
provided for in this chapter…

16. Failure To Furnish-Request By
Claimant Without Referral
In Romano v Trinity School for Children, 43
So.3d 928, 930 (Fla. 1st DCA 2010), the 1st DCA
held that the claimant was not required to
obtain a referral for psychiatric care before
unilaterally seeking treatment if the carrier
failed to authorize such care after the claimant
requested same.

17. Claimant Has Absolute Right
To One Time Change
In Providence Property and Casualty v.
Wilson, 33 Fla. L. Weekly D2251f (Fla. 1st
DCA, 9/23/08), the JCC interpreted section
440.13(2)(f), Florida Statutes, as permitting a
claimant an absolute right to a one-time
change, “for any one accident”, in treating
physician despite being released from care at
MMI without restrictions and defense that the
accident was no longer the major contributing
cause of the injury or need for treatment.

18. One Time Change-Carrier
Chooses
(f) Upon the written request of the
employee, the carrier shall give the
employee the opportunity for one change
of physician during the course of
treatment for any one accident.

19. One Time Change-Claimant
Chooses-5 Days
The carrier has 5 days to authorize
the 1x change otherwise the claimant
gets the option to choose the
physician for the 1x change. See Fla.
Stat. 440.13(2)(f).

20. Treatment Necessary For One
Time Change
Butler v. Bay Center/Chubb Insurance
Co., 947 So. 2d 570 (Fla. 1st DCA
2006), court held that before a claimant's
right to a one-time change in physician
arises, the claimant must have begun
initial treatment with an authorized
physician.

21. One Time Change Is An
Absolute Right
Providence Prop. & Cas. V. Wilson, 990 So.
2d 1224, 1225 (Fla. 1st DCA 2008).

22. One Time Change Satisfied Upon
Designating A Specific Doctor
Harrell v. Citrus County School Bd., 25
So.3d 675 (Fla.1st DCA 2010) holds that
once a request for a 1x change is made, the
carrier must do more than just
acknowledge the claimant’s entitlement to
same. Instead, the carrier must at least
designate one specific doctor within 5 days
even if the appointment is not set within
that time frame.

23. One Time Change Is Not Synonymous
With A Request For Specialty
Evaluation
In Castillo v. Total Source, Inc., 36 Fla. L. Weekly
D1424e (Fla. 1st DCA, 6/30/11), the 1st DCA
reversed a JCC’s finding that a claimant’s request
for surgical evaluation constituted a 1x change.
The court said that the specialist evaluation
provision under F.S.440.13(3)(i) is different than
F.S.440.13(2)(f) and that the former does not
cause deauthorization of the prior doctor.

24. Authorized Evaluation Is
Treatment
In Nunez v. Gallagher Bassett, the referral to
a neurosurgeon resulting in an examination
which included review of an MRI and a
diagnosis was for the purpose of determining
if surgery was warranted to treat claimant’s
condition…and the 1st DCA held that
“evaluation and diagnosis constitutes
treatment”…33 Fla. L. Weekly D1707a (1st
DCA, July 7, 2008)

25. No Need To Offer 3
…While the statute no longer requires an
employer to offer a list of three alternative
physicians, it does require an employer to
offer an alternative physician upon a
claimant's written request.
See, Providence Prop. & Cas. v.
Wilson, 990 So. 2d 1224 (1st
DCA, 9/23/08)

26. Prior Doctor Is De-authorized
Upon Written Notification
…Upon the granting of a change of
physician, the originally authorized physician
in the same specialty as the changed physician
shall become de-authorized upon written
notification by the employer or carrier…Id.

27. Claimant Selects Doctor If Not
Provided Within 5 Days
…The carrier shall authorize an alternative physician
who shall not be professionally affiliated with the
previous physician within 5 days after receipt of the
request. If the carrier fails to provide a change of
physician as requested by the employee, the employee
may select the physician and such physician shall be
considered authorized if the treatment being provided
is compensable and medically necessary…

28. Referral For Care By Authorized
Doctor – 3 Days To Reply
440.13(3)(d) A carrier must respond, by telephone or
in writing, to a request for authorization from an
authorized health care provider by the close of the
third business day after receipt of the request. A
carrier who fails to respond to a written request for
authorization for referral for medical treatment by
the close of the third business day after receipt of the
request consents to the medical necessity for such
treatment. All such requests must be made to the
carrier. Notice to the carrier does not include notice to
the employer.

29. Limitations On One Time
Change
Claimant can waive the right to select. In
Pruitt v. Southeast Personnel Leasing
Inc., Case No. 1D09-4388 (Fla. 1st
DCA, April 26, 2010), the appellate court
held that where the claimant acquiesced to
E/C’s selection of the 1x change despite
E/C’s late authorization, the claimant has
waived the right to select the doctor and
cannot later select the doctor.

30. Specialty Care – 10 Days To
Respond
440.13(3)(i) Notwithstanding paragraph (d), a claim
for specialist consultations, surgical
operations, physiotherapeutic or occupational
therapy procedures, X-ray examinations, or special
diagnostic laboratory tests that cost more than $1,000
and other specialty services that the Department
identifies by rule is not valid and reimbursable unless
the services have been expressly authorized by the
carrier, or unless the carrier has failed to respond
within 10 days to a written request for
authorization…

31. De-Authorization Of A
Treater
A physician may be de-
authorized:
1. By IME showing failure to
progress.
2. By DFS Pursuant to Review.

32. IME De-Authorization
440.13(2)(d) The carrier has the right to
transfer the care of an injured employee from
the attending health care provider if an
independent medical examination determines
that the employee is not making appropriate
progress in recuperation.

33. De-Authorization IME Should Not Be
The New Treater
In Fields v. Bayfront Medical Center, 15 FLWCLB
56 (Fla. JCC, St. Petersburg 2008), Judge
Remsnyder held that the E/C should immediately
re-authorize a de-authorized specialist who had
been treating the claimant for 17 years because the
E/C’s IME physician who made the determination
that the claimant was not making appropriate
progress in recuperation was also the physician to
whom the treatment was to be transferred thus
invalidating the doctor’s IME status. See Lombardi
v. S. Wine & Spirits, 890 So. 2d 1128, 1129 (Fla. 1st
DCA 2004)(IME is not a treater).

34. DFS De-Authorization
440.13(8)(b) If the Department determines that
a health care provider has engaged in a pattern
or practice of overutilization or a violation of
this chapter or rules adopted by the
Department, including a pattern or practice of
providing treatment in excess of the practice
parameters or protocols of treatment, it may
impose one or more of the following
penalties:… 2. Deauthorization of care under
review…

35. DFS Handles Claims By
Medical Providers Against E/C
In Bryan LGH Medical Center v. Florida Beauty
Flora, Inc., 36 So.3d 795 (Fla. 1st DCA 2010) the 1st
DCA held that a hospital, Bryan LGH, had
independent standing to bring a claim for payment for
medical services it alleges are due from the E/C under
the Workers' Compensation Law. See Rebich v.
Burdine's, 417 So.2d 284 (Fla. 1st DCA
1982)(interpreting 1974 amendment to section
440.10(1) as creating independent standing on behalf
of physician to bring an action against insurance
company for payment of bills).

36. DFS Handles Claims By
Medical Providers Against E/C
In Bryan LGH Medical Center v. Florida Beauty
Flora, Inc., 36 So.3d 795 (Fla. 1st DCA 2010) the 1st
DCA explained that under F.S. 440.13(14)(2006) “A
health care provider may not collect or receive a fee
from an injured employee within this state, except as
otherwise provided by the chapter. Such providers
have recourse against the employer or carrier for
services rendered in accordance with this chapter.”

37. DFS Handles Claims By
Medical Providers Against E/C
In Bryan LGH Medical Center v. Florida Beauty
Flora, Inc., the Court further explained that the
proper forum for disposition of this dispute is within
the Department of Financial Services (DFS). See F.S.
440.13(7)(a), Fla. Stat. (2009) (providing health care
provider's petition for payment of medical services
“must” be filed with DFS).

38. DFS Handles Claims By Medical
Providers Against E/C
In Bryan LGH Medical Center v. Florida Beauty
Flora, Inc., the Court identified F.S. 440.13(11)(c), Fla. Stat.
(2009) as providing that DFS has “exclusive jurisdiction to
decide any matters concerning reimbursement”); Avalon Ctr. v.
Hardaway, 967 So.2d 268, 273 (Fla. 1st DCA 2007)(holding JCC
does not have jurisdiction over reimbursement dispute because
jurisdiction is vested in another agency); see also Terners of
Miami Corp. v. Freshwater, 599 So.2d 674, 675 (Fla. 1st DCA
1992)(en banc) (explaining July 1, 1990 legislative amendments
vesting jurisdiction in Division of Workers' Compensation to
resolve reimbursement disputes are procedural changes that
divest JCC of jurisdiction to resolve such disputes.

39. DFS Has Jurisdiction When E/C
Alleges Failure to File Forms
Cook v. Palm Beach County School Board, 36 FLW
D107b (Fla. 1st DCA, January 13, 2011), The JCC
lacks jurisdiction over claim when E/C does not deny
medical bills but alleges that the medical provider
failed to file same with E/C on proper forms.

40. Authorization Of Physicians
Outside of Florida
According to Florida Admin. Rule 59A-
29.002(d), the requirement for DFS
certification does not apply to health care
providers of medical services outside the
State of Florida. See Arreola, 976 So.2d
612 (Fla. 1st DCA 2008)

41. Physicians Outside of the U.S.
According to AMS Staff
Leasing, Inc. v. Arreola, a foreign
physician (Mexican orthopedist)
may render compensable services to
workers' compensation claimants
injured in Florida. See Arreola, 976
So.2d 612 (Fla. 1st DCA 2008)

42. Access To Medical Information
440.13(4)(c)…upon the request of the employer, the
carrier, an authorized qualified rehabilitation
provider, or the attorney for the employer or
carrier, the medical records, reports, and
information of an injured employee relevant to the
particular injury or illness for which compensation
is sought must be furnished to those persons and the
medical condition of the injured employee must be
discussed with those persons, if the records and the
discussions are restricted to conditions relating to
the workplace injury…does not require the
authorization of the injured employee.

43. Independent Medical Examination
•What is an IME?
440.13(1)(i) "Independent medical examiner"
means a physician selected by either an
employee or a carrier to render one or more
independent medical examinations in
connection with a dispute arising under this
chapter.
•What it’s not?
–Although an IME may ultimately assist a
claimant in securing medical treatment, it is not
medical treatment. See Lombardi v. S. Wine &
Spirits, 890 So. 2d1128, 1129 (Fla. 1stDCA
2004).

44. Disputes Justifying An IME
In any dispute concerning
overutilization, medical
benefits, compensability, or disability under
this chapter, the carrier or the employee may
select an independent medical examiner. F.S.
440.13(5)

45. IME-Reasonableness Standard
Applies
The appellate court has held that there is a
simple reasonableness requirement in the
IME provisions that is subject to a JCC’s
exercise of discretion. See Farm Stores
Inc., v. Fletcher, 621 So. 2d 706 (Fla. 1st
DCA 1993)(Timing, location, updated
IME).

46. IME Before PFB?
Maybe not – Karell v. Miami Airport Hilton, 668
So. 2d 227 (Fla. 1st DCA 1996) held that the JCC
could not order an IME before a suit was filed and
the 1st DCA reversed an order compelling an IME
otherwise. Rule 60Q-6114(1) states that discovery
may be had if authorized by statute before
jurisdiction of the JCC is invoked. Since there is no
specific provision allowing for an IME before a
PFB as there is with the taking of a claimant’s
deposition, an IME would not be allowed before a
PFB is filed. An IME may be awarded if there is a
dispute as to compensability, overutilization or
medical benefits.

47. Independent Medical
Examination
• “The employer and the employee shall be entitled
to only one IME per accident and not one IME
per medical specialty.” – F.S. 440.13(5)(a).
However, Each party is entitled to an alternate
examiner only if: 1. The examiner is not
qualified to render an opinion upon an aspect
of the employee's illness or injury which is
material to the claim or petition for benefits
• “The party selecting the IME shall identify the
choice of the independent medical examiner to all
other parties within 15 days after the date the IME
is to take place.” – Id.

48. Additional Independent Medical
Examination Allowed
In Gomar v. Ridenhour Concrete And Supply,
42 So.3d 855 (Fla. 1st DCA 2010), the District
Court of Appeal held that claimant's challenge to
the opinions of doctors placing him at maximum
medical improvement (MMI) raised a new
dispute for which he was entitled to seek a new or
updated independent medical examination
(IME). The appellate court explained that the
only way to read these provisions harmoniously is
to interpret section 440.13(5)(a) as allowing for
one independent medical examiner per accident.

49. Additional Independent Medical
Examination – Same Examiner
To hold that a party is allowed by statute to obtain
an examination by its chosen independent
medical examiner only one time, despite the fact
that these issues may, and often do, arise long
after the initial examination, would lead to a
reductio ad absurdum. Thus, we hold that each
party is entitled to an IME for each covered
dispute during the life of a claim, so long as it is
performed by the same examiner. Gomar v.
Ridenhour Concrete And Supply,
42 So.3d 855 (Fla. 1st DCA 2010).

50. Who Pays For The IME?
The party requesting and selecting the
independent medical examination shall be
responsible for all expenses associated with
said examination, including, but not limited
to, medically necessary diagnostic testing
performed and physician or medical care
provider fees for the evaluation…F.S.
440.13(5)(a).

51. Can Claimant’s Attorney
Attend A Defense IME?
In, McClennan v. American Building Maintenance, 648 So.2d
1214 (Fla. 1st DCA 1995), the 1st DCA found that an
employer/carrier would have to demonstrate a valid reason to
exclude a claimant's attorney from a workers' compensation
examination. In civil cases, plaintiffs are generally entitled to
have their attorneys and court reporters or videographers
attend both physical and mental examinations unless there are
good reasons for excluding them because of the adversarial
nature of the matter. See, U.S. Sec. Ins. Co. v. Cimino, 754
So.2d 697, 701 (Fla.2000)(holding that insured seeking PIP
benefits was entitled to have attorney or videographer present
at examination absent valid reason for exclusion).

52. How To Exclude The Attorney
From Attendance?
1. Specific justification in an affidavit by the doctor
supporting that the presence will be disruptive.
2. Evidence that no other qualified physician can be
located in the area who would be willing to
perform the examination.
Thompson v. Awnclean USA, Inc., 849 So.2d 1129
Fla. 1st DCA 2003)(Court reporter was at issue
here. And, the doctor improperly charged beyond
what was allowed under the statute to conduct the
IME with a court reporter present.).

53. Can Defense Attend Claimant’s
IME?
Probably Not:
“We find that the policy reasons behind permitting a
claimant's attorney to attend such an
examination, i.e., assistance and protection, do not
support an E/C's counsel's attendance at an IME
based upon a mere allegation that his or her presence
is necessary to ensure against IME disruption.”
See, Chavez v. J & L Drywall & Travelers Ins.
Co., 858 So.2d 1266 (Fla. 1st DCA 2003)(Claimant’s
privacy was discussed).

54. IME: Evidentiary
Considerations
• “No medical opinion other than the
opinion of a medical advisor appointed
by the JCC, an independent medical
examiner, or an authorized treating
provider is admissible in proceedings
before the JCC.” –F.S.440.13(5)(e)
• Each party is bound by his or her
selection of an IME and the opinions of
the IME.

55. Limitations On Medical Testimony-
History
The Russell v. Orange County Public Schools Transp., 36 So.3d
743 (Fla. 1st DCA 2010) Court explained that Section 440.13 was
amended in 1993 to include subsection (5)(e), limiting medical
opinion testimony to only EMAs, providers, and IMEs. See Ch.
93-415, § 17, Laws of Fla. The Governor's reform proposal of
1993 outlined the general goals of these amendments and
included one of those goals as limiting a perceived “doctor-
shopping” problem.

56. Testimony of an “Unauthorized” Provider
In Parodi v. Florida Contracting Company, Inc., 16 So. 3d 958
(Fla. 1st DCA 2009), the First District Court of Appeals held that
when the E/C wrongfully denies medical care and the claimant is
required to utilize the self-help provisions of section
440.13(2)(c), the JCC is not obliged to exclude the opinions of the
doctors from whom Claimant was forced to obtain medical
treatment. In this case, the JCC excluded the opinions of the
prior treaters as being “unauthorized”. The appellate court
reversed and held that the doctors were authorized by operation
of section 440.13(2)(c), as they provided care during the E/C's
wrongful denial of benefits. However, the Court has indicated
that compensability must first be established before the opinion
of an unauthorized provider may be admitted. See Brockington
v. Pacesetter Personnel, 2010 WL 4793384 (Fla. 1st
DCA, 11/23/10)(PCA).

57. Testimony of a Non-Medical Toxicologist is
Inadmissible
In Stokes v. Schindler Elevator Corp, 36 Fla. L.
Weekly D982c (1st DCA, 5/9/11), the 1st DCA
reversed the JCC’s reliance on a non-medical
toxicologist who testified as to causation citing
to a violation of the provisions of
F.S.440.13(5)(e) and 440.09(1), Fla. Stat. (2007)
(providing occupational causation must be
established to a reasonable degree of medical
certainty and demonstrated by medical evidence
only).

58. Testimony of a Non-Medical Toxicologist is
Inadmissible (Continued)
“…This court has recently held that a JCC may
not rely upon the opinion of a Ph.D. toxicologist
-- a non-physician -- in determining medical
causation under the Workers' Compensation
Law. See Witham v. Sheehan Pipeline Constr.
Co., 45 So. 3d 105, 108-109 (Fla. 1st DCA 2010)
(“Because Dr. Harbison is not a medical
doctor, he was not qualified to testify as to the
medical cause of Claimant's condition in this
particular case.”).

59. Expert Testimony Standard
In Stokes v. Schindler Elevator Corp, 36 Fla. L.
Weekly D982c (1st DCA, 5/9/11), the JCC held that the
medical doctors could not establish a causal
relationship between an infection of the ankle and an
infection in the heart which caused death. In
reversing, the 1st DCA explained that … “the JCC's
conclusions that the medical experts' opinions were
legally infirm because of the lack of epidemiological
studies linking endocarditis to ankle wounds, and her
conclusion that no evidence established that the fatal
heart infection stemmed from the ankle
wound, misapprehends the use of expert opinion
testimony in Florida courts.

60. Expert Testimony Standard (Continued)
When expert's opinion is based upon generally
accepted scientific principles and methodology
reasonably relied upon by experts in relevant field of
expertise, it is not necessary that expert's deductions
based thereon and opinion also be generally accepted
as well. U.S. Sugar Corp. v. Henson, 823 So. 2d
104, 109 (Fla. 2002); See also Stokes v. Schindler
Elevator Corp, 36 Fla. L. Weekly D982c (1st
DCA, 5/9/11

61. Testimony of a Previously “Authorized”
Provider Is Admissible
In Russell v. Orange County Public Schools Transp., 36 So.3d
743 (Fla. 1st DCA 2010), the 1st DCA held that the JCC’s
exclusion of the opinions of a doctor who was once authorized
but later unauthorized was error. The Court explained that to
hold otherwise would promote gamesmanship.
Specifically, interpreting section 440.13(5)(e) to preclude the
admission of a de-authorized physician's medical opinion would
contravene the purposes of the Chapter 440…this interpretation
would enable an employer/servicing agency simply to de-
authorize a physician at any time it does not want the opinion of
that particular physician in evidence. Likewise, a claimant could
preclude the admission of a physician's disadvantageous opinion
by simply requesting his or her one-time change, thereby
requiring the E/SA to de-authorize the current treating
physician.

62. Expert Medical Advisor
• What is an EMA?
• An EMA is a health care provider who
has been certified as an expert in a
medical specialty to assist the
Department and the judges of
compensation claims within the advisor’s
area of expertise.

63. When Is It Proper to Obtain
An EMA?
If there is disagreement in the opinions of the health care
providers, if 2 health care providers disagree on medical
evidence supporting the employee’s complaints or the need
for additional medical treatment, or if 2 health care
providers disagree that the employee is able return to
work, the Department may, and the judge of compensation
claims shall, upon his or her own motion within 15 days
after receipt of a written request by either the injured
employee, the employer, or the carrier, order the injured
employee to be evaluated by an expert medical advisor.
F.S. 440.13(9)(c)

64. The Disagreement Need Not Be
From The Same Specialty
In AA Gutter Cleaning, Inc. v. Cesario,
st
49 So.3d 281 (Fla. 1 DCA 2010), the
disagreement was between an
orthopedist and pain management
specialist.

65. EMA: Evidentiary
Considerations
• An EMA must complete an evaluation
and issue a report to the Department or
to the JCC within 15 days after receipt of
all medical records. The EMA must also
furnish a copy of the report to the carrier
and to the employee.
• The opinion of the EMA is presumed to
be correct unless there is clear and
convincing evidence to the contrary as
determined by the JCC.

66. EMA: Evidentiary
Considerations
Based upon F.S. 440.13(9)(c) and Court
interpretation, an EMA’s opinion has
a “nearly conclusive effect.” Pierre v.
Handi Van, Inc., 717 So. 2d 1115,1117
(Fla. 1st DCA 1998).

67. Case Discussion-Conflict
Thomas Stone v. Lynx, 2008 WL 90118 (Fla. 1st
DCA, January 10, 2008)
• Claimant IME and defense IME conflicted.
Defense IME testimony was based on a review of an
MRI that he had not actually reviewed. Defense
moved for an EMA.
• Claimant sought to strike defense IME and
therefore eliminate conflict in medical opinions.
• JCC denied the Motion to Strike, found a conflict
in evidence, ordered an EMA who testified in favor of
Employer/Carrier. Defense verdict, appealed by
Claimant, affirmed by 1st DCA.

68. Don’t Depend On The JCC Ordering
An EMA Without A Timely Motion
In AIG v. Camacho, 975 So. 2d, 1219 (Fla. 1st DCA
2008), medical experts disagreed on issues but E/C
attorney did not timely ask for an EMA. They tried to
argue on appeal that the JCC had a duty to award an
EMA without their motion. The DCA held that, while
the judge has an independent duty to appoint an
expert medical advisor when the evidence calls for
it, failure of the JCC to do so does not constitute
fundamental error, and may not be raised for the
first time on appeal.

69. JCC Must Address The Issues-
EMA Assists
Fitzgerald v. Osceola County School Bd., 974
So. 2d 1161 (Fla. 1st DCA 2008), involved a
workplace mold exposure and issues of
causation.

70. 1 st DCA Holding-Fitzgerald
The EMA should assist the JCC in making
factual findings based on conflicting medical
evidence.

71. Refusal Of Medical Care May
Result In Loss Of Indemnity
Benefits
In Lobnitz v. Orange Memorial Hospital 126 So. 2d
739 (Fla. 1961), the Florida Supreme Court held in
1961 that it is manifestly unjust and not in
accordance with the law to place the liability of
compensation on the employer when the employer
had no opportunity whatever to reduce its liability
by proper medical treatment. In that case, the
claimant refused medical care for 6 months and
indemnity benefits were denied.

72. More On Lobnitz
The Lobnitz medical refusal language was dicta but
was supported in Hunt-Wilde v. Kitchen, 452 So. 2d
2 (Fla 1st DCA 1984), a case wherein wage loss was
denied for the failure of a claimant to follow-up with
recommended medical care. Id at p. 5. Lobnitz, was
limited in Davis v. Marion County, 667 So. 2d 297
(Fla. 1st DCA 1995), a case wherein the Appellate
Court stated in dicta that Lobnitz may be limited to
instances wherein refusal of medical care causes the
claimant to remain TTD.

73. More On Lobnitz (Continued)
In State of Florida v. Wojick, 36 Fla. L. Weekly
D2542a (Fla. 1st DCA, 11/22/11), the court said that a
claimant always has the right to reject medical
assistance, although the consequences may include
forfeiture of certain workers' compensation benefits
citing to 440.13(5)(d), Fla. Stat. (2006) (stating that an
employee who fails to appear for an Employer/Carrier-
ordered IME without sufficient notice or good cause is
barred from recovering compensation for the period
during which she refuses to submit to IME). This case
indirectly affirms the Lobnitz holding .

74. Attendant Care
• What is Attendant Care?
Per F.S. 440.13, “attendant care” means care
rendered by trained professional attendants
which is beyond the scope of household
duties. Family members may provide
nonprofessional attendant care, but may not
be compensated for care that falls within the
scope of household duties and other services
normally and gratuitously provided by
family members.

75. When is an injured worker likely to
receive attendant care benefits?
If an injured worker’s injury prevents him or her from
taking care of their daily needs, like
bathing, dressing,cooking, and driving to the store to get
medications, he or she may be entitled to attendant care
benefits.
The E/C shall not be responsible for such care until the
written prescription for attendant care is received by the
E/C, which shall specify:
– Time period for such care,
– The level of care required, and

76. Claimant’s Burden
• Claimants have the burden of proving the quantity, quality,
and duration of attendant services claimed. See Orange
County Sheriff's Dept. v. Perez, 541 So.2d 652, 654 (Fla. 1st
DCA 1989).

77. Contemporaneous
Prescription, Direction And
Control Not Necessary
In Rockette v. Space Gateway Support, 877 So.2d 852
(Fla. 1st DCA 2004) , the Court held that the fact that the
claimant's treating physician did not prescribe attendant
care is not determinative of the claimant's right to recover
such benefits. It is sufficient that the physician provided the
necessary testimony at the hearing. See also IMC Phosphates
Co. v. Prater, 895 So.2d 1263 (Fla. 1st DCA 2005).

78. Household Services Not Compensable
Historically
The denial of attendant care benefits for purely household
services dates back to case law of the 1960s. In South Coast
Construction Co. v. Chizauskas, the Florida Supreme Court
determined that an E/C was not required to furnish
“housekeeping and related services” for a worker blinded as a
result of a compensable accident. 172 So.2d 442, 444 (Fla.1965).
Similarly, in Pan American World Airways, Inc. v. Weaver, the
supreme court refused to allow compensation benefits for general
household services even though the claimant was permanently
and totally disabled. 226 So.2d 801, 802-03 (Fla.1969). The 1st
DCA has followed these decisions and found household services
non-compensable. See, e.g., Barkett Computer Serv. v.
Santana, 568 So.2d 520, 521-22 (Fla. 1st DCA 1990); City of
Leesburg v. Balliet, 413 So.2d 860, 861 (Fla. 1st DCA 1982).

79. Household Services May Qualify
In Some Instances
Are there times when household services are
awardable?
Yes-Although “the general rule [is] that ordinary services of a
purely household nature are not usually compensable, especially
when those services merely reflect a claimant's individual choice
as to quality of life, numerous decisions of this court have
established that there are a variety of situations in which
household services may be awarded.” Diana v. HLS, 670 So. 2d
102 (Fla. 1st DCA 1996)(i.e. if necessary services overlap). But see
Lykes v Chessher, 33 So. 3d 809 (Fla. 1st DCA 2010)(Household
services not compensable).

80. Attendant Care-Applicable
Law
The applicable statute for awarding compensation for attendant
care is the statute in effect at the time the compensable care was
given. See Socolow v. Flanigans Enters., 877 So.2d 742, 744 (Fla.
1st DCA 2004). However, in ABC Home Health v. Lawson, 36
So.3d 807 (Fla. 1st DCA 2010), the 1st DCA explained that the
statute in effect for Claimant's date of accident expressly
prohibited an award of services to assist an injured worker in
performing “household duties.” This indicates that the law in
effect at the time of accident governs the award of attendant
care.

81. Qualifying Services Generally
Examples of the types of services that can constitute
attendant care include bathing, dressing, administering
medication, and assisting with sanitary functions.
Sealey Mattress Co. v. Gause, 466 So.2d 399, 400 (Fla.
1st DCA 1985).

82. Supervisory Services Generally
It is erroneous for a JCC to award attendant care
without regard to the actual services performed by a
caretaker. See Bojangles v. Kuring, 598 So.2d 250, 251
(Fla. 1st DCA 1992). If care is not provided, it cannot be
compensated. A logical consequence of this is that a
caretaker cannot be compensated for time spent
employed outside of the claimant's presence, even if the
caretaker is considered “on call.” AT & T Wireless
Services, Inc. v. Castro, 896 So.2d 828 (Fla. 1st DCA
2005).

83. Lawn Care Services
Are lawn care services awardable?
Not if medical evidence shows no medical necessity. In
ABC Home Health v. Lawson, 36 So.3d 807 (Fla. 1st
DCA 2010), the 1st DCA reversed an award of lawn
care service and explained that lawn care services were
not awardable because no evidence established a
medical need for Claimant's yard to remain well-
maintained or that there would be adverse medical
consequences if the yard is not maintained.

84. The Value of Nonprofessional
Attendant Care
F.S. 440.13(2)(b), provides:
1. If the family member is not employed, or is
providing attendant care during hours that he or
she is not engaged in work, the per-hour value =
federal minimum wage.
2. If the family member leaves their employment to
provide attendant care, the per-hour value = per-
hour value of former employment.
3. If the family member remains employed while
providing attendant care, the per-hour value =
per-hour value of the family member’s
employment.

85. Cosmetic Or Reconstructive
Surgery
In Perez v. UPS, 725 So. 2d 423 (1st DCA
1999), the Court held, we agree with the
Supreme Court of Tennessee that "when
reconstructive surgery or other treatment will
be reasonably effective in improving a
permanent disfigurement resulting from a
work related injury, such surgery or other
treatment is 'reasonably required' . . . even in
the absence of vocational impairment.

86. Treatment Solely For Cosmetic
Improvement
The fact some operative procedures are solely
for the purpose of making the injured
employee more presentable physically cannot
reasonably be considered as outside the
purview of the statute requiring additional
medical treatment which may be awarded . . .
as reasonably necessary. Perez, 725 So. 2d 424

87. Other Services/Devices
In ABC Home Health v. Lawson, 36 So.3d 807
(Fla. 1st DCA 2010), the 1st DCA affirmed an
award of a hot tub and dental evaluation as
CSE supported the medical necessity of same.
The Court equated medical necessity with
adverse medical consequences if the services
or device were not provided.

88. Chiropractic Care
• Effective 1/1/94, the Legislature placed the initial cap on
chiropractic treatment. Chiropractic care was limited to the first
of 18 treatments or 8 weeks time beyond the date of the initial
chiropractic treatment.
• Effective 10/1/03 Medically necessary treatment, care, and
attendance does not include chiropractic services in excess of 24
treatments or rendered 12 weeks beyond the date of the initial
chiropractic treatment, whichever comes first, unless the carrier
authorizes additional treatment or the employee is
catastrophically injured. – F.S.440.13(2)(a);
DISCUSSION: Why the amendments?

89. Managed Care
• What is a managed care arrangement?
– It’s an arrangement where a healthcare provider
has entered into a written agreement with an
insurer to provide and to manage appropriate
remedial treatment, care, and attendance to injured
workers.
– By its broadest definition, managed care is a health
care delivery arrangement in which a third party
acts as a referee between the provider of care and
the recipient of care.
– Under the managed care rules, the claimant has a
right to select from the list of primary care
physicians, and the E/C cannot limit the claimant’s
selection to any particular physician.

90. When/Why did Managed Develop in Florida?
• In 1993, the Florida Legislature adopted major reforms to the
Workers’ Comp law.
• Effective 1/1/97, all treatment under Workers’ Comp. was to be
provided exclusively through Managed Care arrangements.
– Effective 10/1/01, provision of treatment through Managed
Care is no longer required.
• The move toward managed care was the direct result of
preliminary findings of a managed care pilot project that
demonstrated significant potential for savings in a workers’
compensation setting. Such savings include:
– reduction in the cost of medical claims,
– reduced frequency of claims involving more than seven days of
missed work (i.e., lost-time claims),
– reduced indemnity costs, and
– shorter duration of disability

91. The Managed Care Plan
• An insured may not offer or utilize a worker’s
compensation managed care arrangement until
its managed care plan of operation has been
approved by the Department and the insurer is
authorized by the Department to offer or utilize
a worker’s compensation managed care
arrangement.
• The proposed managed care plan must include:
– A statement or map of the service area
– A description of the grievance procedure to be used.
– A description of the quality assurance program
which assures that the health care services are
reasonable.