Employer Still Has Right to Choose Doctor

Thursday, December 17, 2009 | 0

By Michael Rabinowitz

With the release of the recent Parodi decision, I lamented the risk employer/carriers take when they deny claims, specifically medical claims.  With Parodi, a claimant can just obtain an treatments from an unauthorized physician, and if the treatment is proven to be compensable and medically necessary, then the opinions of the unauthorized physician can be admitted into evidence.  In essence the Court is deeming the doctor authorized based on the judge of compensation claims ruling of compensability and medical necessity.

A truly gut wrenching opinion for E/C’s.  .  . until now.

In Carmack v. State of Florida Department of Agriculture, claimant suffered a compensable accident, injuring his leg and back. During the course of treatment, claimant requested a referral for psychiatric care.  Receiving no authorization from the carrier, claimant sought treatment on his own.

Ultimately, the JCC found the care compensable and medically necessity, ordering the E/C to reimburse claimant for the cost of psychiatric treatment.  But, the JCC also ruled that the E/C was not required to provide claimant with continued treatment the unauthorized psychiatrist.  The E/C was entitled to select and authorize a psychiatrist of its own choosing to provide ongoing care.  The great news is that the 1st DCA agreed with the JCC’s ruling.

In analyzing their ruling, the Court found the “self-help” provision of the statute, namely s. 440.113(2)(c), where the E/C fails to “provide initial treatment or care.”  The court focused on the word “initial” and interpret it to mean the Legislature intended that the section only applies to the period of time the E/C improperly denied the treatment.  The Court now makes clear that the period of wrongful denial ends when the JCC finds the claimant is entitled to the treatment.  From that moment on, the E/C takes over treatment and has the right to choose the physician.

This ruling remains in line with the longstanding rule that the E/C always controls the selection of the treating physician.  This ruling also takes the bite out of the Parodi decision in that should you lose the issue of medical benefits, you, the claims professional, still have the option of choosing a physician of your liking.  And, and I cannot stress this enough: choosing the doctor is a huge factor in limiting exposure and future litigation on your claims.

The Court notes a possible exception where treatment with particular physician would be medically necessary in and of itself since few doctors are specialized in that area of medicine.

To read the Carmack decision, go here:
http://www.workcompcentral.com/pdf/2009/misc/carmack121509.pdf

Subscribers may also access the opinion through our database by clicking the case title in the sidebar.

Michael Rabinowitz is an attorney with Banker Lopez Gassler in Tampa. This column is reprinted from his blog, Workers' Comp Corner, which can be found here: http://workerscompblog.wordpress.com/about/