OCEAN MANOR RESORT HOTEL AND CNA INSURANCE COMPANY, APPELLANTS,
v.
JULIO V. GARBALOSA, APPELLEE
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In this workers' compensation appeal, the Florida District Court of Appeal reversed the deputy commissioner's determinations on two issues: (1) reimbursement for unauthorized chiropractic care provided before notice to the employer-carrier was improper, but treatment after notice must be reimbursed unless alternative care was authorized, and (2) failure to offset unemployment compensation benefits against temporary partial disability benefits was erroneous.
The Court held that: (1) the employer-carrier is not responsible for unauthorized chiropractic treatment absent a medical emergency, but once the employer-carrier received notice of the claimant's intent to seek treatment from Dr. Schmer, it had a duty to authorize such treatment or offer alternative treatment; and (2) unemployment compensation benefits must be offset against temporary partial disability benefits such that the claimant receives only supplemental benefits, with the total not exceeding what would have been payable as wage-loss benefits.
[1] An employer is not responsible for unauthorized medical treatment of a workers' compensation claimant, absent a medical emergency, where the claimant arbitrarily changes…
[2] Once an employer receives notice that a claimant is seeking chiropractic care, the employer has a duty to authorize such treatment or offer alternative chiropractic treat…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“An e/c is not responsible for unauthorized treatment of a workers' compensation claimant, absent a medical emergency, where a claimant arbitrarily changes doctors while the e/c is providing medical treatment, and the claimant fails to seek prior approval of the dc.”
Establishes the general rule that unauthorized medical treatment is not the employer-carrier's responsibility absent emergency.
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Join FLexlaw to unlock all legal intelligenceThe claimant sustained a work injury and sought chiropractic treatment from Dr. Schmer based on friends' recommendations. The employer-carrier initial…
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ERVIN, Judge.
Appellant/employer-carrier (e/c) raises six issues in this workers’ compensation appeal. We find that four of the issues are without merit and affirm without discussion. We reverse the remaining two issues.
First, we reverse the characterization by the deputy commissioner (dc) of medical treatment by a chiropractor, Dr. Schmer, as an “emergency” and as such is reimbursable without prior authorization or notice to the e/c.
We find no competent, substantial evidence supporting a finding that claimant began treatment with Dr. Schmer due to a medical emergency.
The record instead reflects that claimant went to Dr. Schmer at the recommendation of friends. An e/c is not responsible for unauthorized treatment of a workers’ compensation claimant, absent a medical emergency, where a claimant arbitrarily changes doctors while the e/c is providing medical treatment, and the claimant fails to seek prior approval of the dc. Delta Airlines v. Underwood, 406 So. 2d 1188 (Fla. 1st DCA 1981).
We reverse, therefore, the order as it directs payment of Dr. Schmer’s medical treatment, provided to claimant before the date the e/c received notice of such treatment.
Once, however, the e/c was placed on notice by letter dated July 17,1985, that the claimant was seeking the chiropractic care of Dr. Schmer, the e/c had a duty to authorize treatment by Dr. Schmer or offer alternative chiropractic treatment. Gust K. Newberg Construction Co. v. Warren, 449 So. 2d 934 (Fla. 1st DCA 1984).
Cf Smith v. Walt Disney World, 471 So. 2d 637, 639, n. 2 (Fla. 1st DCA 1985) (a claimant is entitled to seek unauthorized medical treatment and later have the reasonableness and necessity of that treatment determined by a dc where authorization has been requested and refused, without alternative care offered by the e/c); Fuchs Baking Co. v. Estate of Szlosek, 466 So. 2d 415 (Fla 1st DCA 1985) (claimant may seek unauthorized medical treatment where authorization has been requested and refused by the e/c).
Therefore we direct the dc to award reimbursement for the care furnished to claimant by Dr. Schmer subsequent to the date the e/c received notice that claimant was seeking such treatment, and failed either to authorize Dr. Schmer or to authorize alternative treatment.
Second, we reverse the failure of the dc to order an offset of unemployment compensation benefits received by the claimant against temporary partial disability benefits ordered payable by the e/c from December 1984 through June 1985.
Section 440.15(10)(b) states that “unemployment compensation benefits shall be primary and wage-loss benefits or temporary partial benefits shall be supplemental only, the sum of the two benefits not to exceed the amount of wage-loss benefits which would otherwise be payable.” Appellee testified he was paid $150 a week in unemployment compensation from December 1984 until May of 1985. Claimant is only entitled to those temporary benefits which exceed the amount of unemployment compensation benefits received during the applicable period. On remand, the dc is directed to determine the actual amount of unemployment compensation received by claimant and the amount of the credit to which the e/c is entitled.
AFFIRMED in part and REVERSED in part and REMANDED for further consistent proceedings.
SMITH, C.J., and MILLS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Kirkland v. Harold Pratt Paving, Inc., 518 So. 2d 1320 (Fla. 1st DCA 1987)…was done in this case, does not meet the statutory obligation to authorize a chiropractor in those instances where a claimant requests chiropractic care that is ultimately found to be reasonable and necessary. Ocean Manor Resort Hotel v. Garbalosa, 512 So. 2d 256 (Fla. 1st DCA 1987); Gust K. Newberg Construction Co. v. Warren, 449 So. 2d 934 (Fla. 1st DCA 1984); Sears, Roebuck and Co. v. Viera, 440 So. 2d 49 (Fla. 1st DCA 1983). The deputy commissioner did not find that Dr. Frey’s services were not reasonab…1 / 2
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Thomas v. The Salvation Army & Liberty Mut. Ins. Co., 562 So. 2d 746 (Fla. 1st DCA 1990)…h the law in furnishing medical treatment and is not responsible for the payment of medical bills from an unauthorized family physician from whom the claimant voluntarily sought treatment. As this court held in Ocean Manor Resort Hotel v. Garbalosa, 512 So. 2d 256 (Fla. 1st DCA 1987): An e/c is not responsible for unauthorized treatment of a workers’ compensation claimant, absent a medical emergency, where a claimant arbitrarily changes doctors while the e/c is providing medical treatment, and the claimant f…
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Colace v. Hamlet Ests., Ltd., 573 So. 2d 994 (Fla. 1st DCA 1991)…or risk paying the bill. Id., at 868; Chase v. Henkel & McCoy, 562 So. 2d 831, 832 (Fla. 1st DCA 1990); Teimer v. Pixie Playmates, 532 So. 2d 37, 40 (Fla. 1st DCA 1988) review denied, 539 So. 2d 475 (Fla.1989); Ocean Manor Resort Hotel v. Garbalosa, 512 So. 2d 256, 257 (Fla. 1st DCA 1987). • On the other hand, where the employee requests treatment for an industrial injury and the employer fails to provide treatment, the employee is entitled to obtain it at the expense of the employer, upon a finding by the ju…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fuchs Baking Co. & Emp'r's Serv. Corp. v. Est. of Francis Szlosek, 466 So. 2d 415 (Fla. 1st DCA 1985)
- Gust K. Newberg Constr. Co. & Commercian Union Ins. Co. v. Warren, 449 So. 2d 934 (Fla. 1st DCA 1984)
- DELTA Airlines & Emp'rs Ins. of Wausau v. Underwood, 406 So. 2d 1188 (Fla. 1st DCA 1981)
- Smith v. Walt Disney World Co., 471 So. 2d 637 (Fla. 1st DCA 1985)