HILLSBOROUGH COUNTY SCHOOL BOARD AND ALEXIS RISK MANAGEMENT SERVICES, INC. F/K/A POE RISK MANAGEMENT SERVICES, INC., APPELLANTS,
v.
ALCANEZ BROWN, APPELLEE

Fla. 1st DCA | 1990-08-13
No. 89-3311
BOOTH and WOLF, JJ., concur.
565 So. 2d 867 Florida District Court of Appeal, First District (1990) Positive Treatment
Cited by 10 cases

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Synopsis

In this workers' compensation case, the Florida First District Court of Appeal reversed an order requiring an employer/carrier to pay for unauthorized surgery. The court held that a claimant cannot unilaterally obtain non-emergency treatment from an unauthorized physician and demand reimbursement when alternative authorized care has been offered, absent genuine emergency circumstances.


Holding

A claimant may not unilaterally obtain treatment from an unauthorized physician and later obtain reimbursement except in genuine emergency situations. Where alternative authorized medical care has been offered, the claimant must request and secure a hearing before the JCC to determine the reasonableness and necessity of the proposed treatment before proceeding with unauthorized treatment.


Headnotes

[1] A workers' compensation claimant who has been offered alternative medical care may not unilaterally obtain treatment from an unauthorized physician and later seek reimbur…

[2] In non-emergency situations, a workers' compensation claimant must request a hearing and secure a ruling from the judge of compensation claims prior to obtaining treatmen…

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Key Quotes

“It is well settled that, except in emergency situations, a claimant who has been offered alternative medical care may not unilaterally obtain treatment from an unauthorized physician and later obtain reimbursement from the E/C.”

Establishes the controlling legal rule governing unauthorized medical treatment in workers' compensation cases.

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Facts & Procedural History

Claimant Alcanez Brown sustained a compensable knee injury in April 1988 and was treated by authorized neurologist Dr. Nyako. After a subsequent auto …

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Opinion of the Court
SHIVERS, Chief Judge.

SHIVERS, Chief Judge.

The employer/carrier (E/C) in this workers’ compensation case appeal an order directing payment of bills incurred by an unauthorized physician. We reverse.

Claimant, Alcanez Brown, sustained a compensable knee injury on April 29, 1988 and began receiving treatment by authorized neurologist, Dr. Richard Nyako. While returning from an appointment with Nyako in May 1988, claimant was involved in an automobile accident leaving her with back injuries. The E/C accepted compensability of the second accident, and again authorized Dr. Nyako.

After several months of conservative back treatment, Nyako felt that claimant had reached a plateau and should consult a surgeon to determine whether surgery was necessary. Although Nyako requested authorization of orthopedic surgeon Frederick McClimans, the E/C offered instead to authorize orthopedic surgeon Antonio Castell- vi. Claimant accepted Castellvi, was examined by him, and received an opinion that surgery was not necessary.

Nyako disagreed with Castellvi’s opinion and once again requested authorization for a second opinion. The E/C this time authorized orthopedic surgeon John Baker. The claimant accepted, was examined, and received Baker’s opinion as well that surgery was not necessary and that claimant could be treated conservatively.

In January 1989, Dr. Nyako wrote to the carrier advising them that he was sending claimant to Dr. McClimans for evaluation. Two days later, Nyako wrote a second letter to the carrier stating that McClimans had evaluated the claimant and recommended lumbar fusion surgery, and stating that he would hospitalize claimant for surgery as soon as he received final approval from the claimant’s health insurance company. The carrier responded to Nyako approximately ten days later, stating that it would not authorize surgery based on Cas-tellvi’s and Baker’s opinions that surgery was not necessary.

On February 9, 1989, the claimant filed a claim stating “I am in need of emergency low back surgery as recommended by my treating physician, Dr. Nyako, but which my employer is refusing to provide....” An application for hearing was then filed on February 15, 1989, stating “Carrier is refusing to provide me with the surgery recommended by my treating physician and his consultants.” On February 24, 1989, prior to the hearing on the February 9, 1989 claim, and without having received authorization from the E/C, Dr. McClimans performed lumbar fusion surgery on the claimant.

After a hearing in November 1989, the JCC entered an order directing the E/C to pay all outstanding bills incurred as a result of claimant’s surgery, to reimburse claimant any sums personally paid by her, and to pay costs and attorney’s fees.

It is well settled that, except in emergency situations, a claimant who has been offered alternative medical care may not unilaterally obtain treatment from an unauthorized physician and later obtain reimbursement from the E/C. City of Ft. Lauderdale v. Flanders, 416 So. 2d 1284 (Fla. 1st DCA 1982); E.T. Usher v. Cothron, 445 So. 2d 387 (Fla. 1st DCA 1984); Wackenhut Corp. v. Freilich, 464 So. 2d 217 (Fla. 1st DCA 1985). In such situations, the claimant must request a hearing and secure a ruling by the JCC prior to obtaining treatment.

We agree with the appellant in the instant case that reversal of the JCC’s order is necessary. There is no evidence in the record to suggest that claimant’s surgery was necessary on an emergency basis, or that claimant could not have waited until after the scheduled hearing. Despite these facts, the claimant failed to wait until the reasonableness and necessity of the surgery could be determined by the JCC, and chose instead to proceed with surgery prior to the hearing. Because the claimant chose to undergo unauthorized non-emergency surgery where alternative treatment had been offered by the E/C, we reverse.

BOOTH and WOLF, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Colace v. Hamlet Ests., Ltd., 573 So. 2d 994 (Fla. 1st DCA 1991)
    …sence of an emergency situation, “a claimant who has been offered alternative medical care may not unilaterally obtain treatment from an unauthorized physician and later obtain reimbursement from the E/C.” Hillsborough County School Board, v. Brown, 565 So. 2d 867, 868 (Fla. 1st DCA 1990), and cases cited therein. Where alternative care has been offered, and the parties cannot agree on a treating physician, the claimant must seek a decision through the judge or risk paying the bill. Id., at 868; Chase v. Henk…
  • TW Servs. v. Aldrich, 659 So. 2d 318 (Fla. 1st DCA 1994)
    …tuation, ‘a claimant who has been offered alternative medical care may not unilaterally obtain treatment from an unauthorized physician and later obtain reimbursement from the E/C.’ ” 573 So. 2d at 997 (quoting Hillsborough County Sch. Bd. v. Broum, 565 So. 2d 867, 868 (Fla, 1st DCA 1990)). The court admonished the claimant that “[wjhere alternative care has been offered, and the parties cannot agree on a treating physician, the claimant must seek a decision through the judge or risk paying the bill.” Id. In…
  • …is incumbent upon the claimant to formally initiate a claim for a change in physicians and to present the matter to the judge for determination. See, Robinson v. Howard Hall Co., 219 So. 2d 688 (Fla.1969); Hillsborough County School Board v. Brown, 565 So. 2d 867 (Fla. 1st DCA 1990); Champlain Towers v. Dudley, 481 So. 2d 532 (Fla. 1st DCA 1986); Wackenhut Corp. v. Freilich, 464 So. 2d 217 (Fla. 1st DCA 1985); Usher v. Cothron, 445 So. 2d 387 (Fla. 1st DCA 1984); City of Fort Lauderdale v. Flanders, 416 So.…

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