Opinion
No. 1D20-3767
02-09-2022
PALM BEACH COUNTY SCHOOL DISTRICT, and Sedgwick CMS, Inc., Appellants, v. Frances SMITH, Appellee.
Hinda Klein and Samuel B. Spinner of Conroy Simberg, Hollywood, for Appellants. Wendy S. Loquasto of Fox & Loquasto, LLC, Tallahassee, and Kenneth E. Ehrlich of Felice, Ehrlich & Naparstek, West Palm Beach, for Appellee.
Hinda Klein and Samuel B. Spinner of Conroy Simberg, Hollywood, for Appellants.
Wendy S. Loquasto of Fox & Loquasto, LLC, Tallahassee, and Kenneth E. Ehrlich of Felice, Ehrlich & Naparstek, West Palm Beach, for Appellee.
Osterhaus, J. In this workers’ compensation case, the Employer and Carrier (E/C) appeal the order of the Judge of Compensation Claims (JCC) striking a physician authorized by the E/C under the one-time-change statute, § 440.13(2)(f), Florida Statutes, because the physician's initial evaluation and treatment fee exceeded the base fee schedule rate. We reverse because the Workers’ Compensation Code doesn't authorize a JCC to strike a duly authorized treating physician because of a fee-related problem.
I.
The facts here are straightforward. Claimant sought a one-time change in physician that the E/C granted. The E/C timely appointed a new treating physician, immediately scheduled an appointment for Claimant, and deauthorized the previous treating physician. In arranging the change of physician, E/C and the new authorized treating physician completed a form fee agreement authorizing an advance payment of $800 for Claimant's initial evaluation and treatment. This amount exceeded the base rate provided in the workers’ compensation fee schedule. See Fla. Admin. Code R. 69L-7.020. When Claimant's attorney discovered the amount of the fee, a quarrel ensued between Claimant and the physician about videoing the appointment, which led to Claimant not appearing for her appointment. The appointment was later rescheduled. Meanwhile, Claimant took the view that the higher-than-schedule fee transformed the authorized treating physician into an independent medical examiner (IME) in service of the E/C, nullified the physician's status as an authorized provider, and qualified Claimant to receive a new one-time-change physician. The E/C refused to authorize a new physician. Instead, the E/C and physician revised the language of their fee agreement to align the $800 fee with the statutory provision allowing for fees in excess of the fee schedule. After a final hearing on Claimant's request for a one-time change, the JCC issued a final compensation order concluding that a physician seeing a claimant "is not an authorized treating physician where the physician charges in excess of the maximum amount allowed by law." The JCC thus terminated the E/C-provided treating physician and directed Claimant to receive the one-time change physician of her choice. The E/C then appealed.
II.
The E/C appeals the JCC's authority to strike the one-time-change physician it authorized under § 440.13(2)(f) and to award Claimant a new one-time-change physician of her choice. Because resolution of this issue involves the JCC's application of law to undisputed facts, our review is de novo. Cabrera v. Outdoor Empire , 108 So. 3d 691, 692 (Fla. 1st DCA 2013).
The E/C argues that the JCC erred by striking the physician based on its fee agreement with him, and that any defect in the first-draft agreement was timely cured before Claimant saw the physician. Consistent with this argument, the workers’ compensation code provides no JCC process allowing claimants to disqualify their treating physicians because they are dissatisfied with the fee reimbursement arrangements between the physician and E/C. First, as a jurisdictional matter, the scope of the JCCs work does not extend to resolving disagreements about the terms of fee agreements between E/Cs and treating physicians. See Marine Max, Inc. v. Blair , 268 So. 3d 839, 842 (Fla. 1st DCA 2019) (recognizing that issues involving the terms of fee agreements to fall outside the scope of JCC authority). Instead, "all reimbursement disputes fall under the exclusive jurisdiction of DFS." Id. ; § 440.13(11)(a), Fla. Stat. (establishing the Department's powers to investigate "whether providers are engaging in improper billing practices [and] are adhering to practice parameters and protocols established in accordance with this chapter."); § 440.13(11)(c), Fla. Stat. (setting forth the Department's "exclusive jurisdiction to decide any matters concerning reimbursement"); see also Cook v. Palm Beach Cty. Sch. Bd ., 51 So. 3d 619, 620 (Fla. 1st DCA 2011) (recognizing that JCCs lack jurisdiction over payment disputes); Orange County v. Willis , 996 So. 2d 870, 871 (Fla. 1st DCA 2008) (holding claimant "did not have standing to enforce payment of the doctor's bill"); Wolk v. Jaylen Homes, Inc ., 593 So. 2d 1058, 1059–60 (Fla. 1st DCA 1992) (citing Carswell v. Broderick Constr ., 583 So. 2d 803, 804 (Fla. 1st DCA 1991) ) (discussing the roles of the Division and JCC as well as the Division's specific authority to interpret, determine compliance, and resolve disputes regarding the fee schedule). In Marine Max , we recognized that a JCC could not order an E/C to pay an authorized provider in excess of what is allowed by law. 268 So. 3d at 842. Similarly, here, the JCC's authority doesn't extend to striking a provider's authorization because his or her rates exceed the scheduled rates. This is an area where review and resolution are left to another entity.
Second, the workers’ compensation code expressly allows for higher-than-fee-schedule arrangements. Whereas the JCC imputed bias in the fee arrangement taking the view that payments "exceed[ing] the fee schedule amount undermine confidence in the neutrality of the authorized provider," § 440.13(13)(b) doesn't prohibit the E/C and physician from agreeing to higher rates. It says:
(b) Fees charged for remedial treatment, care, and attendance, except for independent medical examinations and consensus independent medical examinations, may not exceed the applicable fee schedules adopted under this chapter and department rule. Notwithstanding any other provision in this chapter, if a physician or health care provider specifically agrees in writing to follow identified procedures aimed at providing quality medical care to injured workers at reasonable costs, deviations from established fee schedules shall be permitted . Written agreements warranting deviations may include, but are not limited to, the timely scheduling of appointments for injured workers, participating in return-to-work programs with injured workers' employers, expediting the reporting of treatments provided to injured workers, and agreeing to continuing education, utilization review, quality assurance, precertification, and case management systems that are designed to provide needed treatment for injured workers.
(Emphasis added). In other words, providers aren't categorically tainted by higher-than-schedule fees. And carriers and authorized providers may agree to reimbursements under "either the [statutory fee] schedule or a mutually agreed upon contract price." Marine Max , 268 So. 3d at 842 (citing Fla. Admin. Code R. 69L-7.020, Fla. Workers’ Comp. Health Care Provider Reimbursement Manual at 15 (2016 ed.)).
Third, the statute gives claimants no recourse for litigating complaints before a JCC about the reimbursements passing between E/Cs and authorized treating physicians. Claimant's view would seemingly grant her potentially unlimited "one-time" changes for each billing miscue whenever she can show that a bill exceeded the scheduled rate for the appointment. The statute, conversely, sets forth limited entry points for complainants to dispute whether an E/C has paid too much. Section § 440.13(6) broadly establishes a self-regulating system between E/Cs and physicians wherein carriers can "disallow or adjust" payments where billing errors exist, or there are violations of practice parameters or protocols established by law. See also § 440.13(3)(i), Fla. Stat. (noting "the carrier's obligation to identify and disallow overutilization or billing errors"). This must be done "without order of a [JCC] or the department." § 440.13(6), Fla. Stat. Section § 440.13(7)(a) then provides an entry point for health care providers to contest the E/C's reimbursement-related actions before the Department. In Marine Max , we interpreted § 440.13(7)(a) to give "only" health care providers rights to initiate proceedings about prepayment disputes. Marine Max , 268 So. 3d at 842 n.2. Here, different from the statutory scheme, Claimant asserts that another entry point exists for her complaint to a JCC about E/C-physician reimbursement levels and receive a new one-time change physician of her choice. But no such route for challenging E/C-physician reimbursements is provided by law.
In reversing the final order here, we recognize that the JCC found the form fee agreement used initially by the E/C and physician did not include the statutory language required to charge a fee higher than the schedule rate. § 440.13(13)(b), Fla. Stat. (requiring a physician to "specifically agree[ ] in writing to follow identified procedures aimed at providing quality medical care to injured workers at reasonable costs"). After learning of this problem, the E/C and physician amended their fee agreement before the physician saw the Claimant at the rescheduled appointment. As earlier noted, the statute contemplates process-and billing-related errors and grants E/Cs room to fix them on their own. § 440.13(6), Fla. Stat. And even if these parties omitted necessary language from their initial fee agreement, the statute doesn't give authority to JCCs to strike a physician's appointment and to appoint a new one. See Marine Max, Inc. , 268 So. 3d at 842–43 (recognizing restrictions on deauthorizing a physician who is ready and able to give care). Rather § 400.13(11)(a) provides that the Department, not JCCs, can investigate and determine if providers "are complying with this chapter" with respect to improper billing practices, parameters, and protocols established by law.
Finally, Claimant argues that one of our cases, City of Riviera Beach v. Napier , 791 So. 2d 1160 (Fla. 1st DCA 2001), authorized the JCC to strike the one-time-change physician and to grant her pick of physicians. In Napier , however, we only recognized that a JCC could lawfully discount the testimony of an IME physician who charged more than what the law allowed. In doing so, we affirmed the not-too-remarkable proposition that JCCs possess "jurisdiction to determine the admissibility of evidence." Id. at 1161. Irrespective of Napier ’s application to IME admissibility questions (a different doctor performed the IME in this case), it does not confer authority to JCCs to strike a one-time change physician and to authorize a new physician on account of a claimant's concern about the fees paid by an E/C to the physician. Again, the workers’ compensation code contemplates that disputes about fees will occur and fully addresses how they are to be resolved. In doing so, the chapter does not afford claimants the option of disqualifying their E/C-authorized physician in a proceeding before a JCC.
III.
For these reasons, the Final Compensation Order is REVERSED .
Winokur and Long, JJ., concur.