Fla. 1st DCA Approves a 'Treat' for Claimants

Saturday, November 4, 2006 | 0

Remington v. City of Ocala/United Self Insured

Case No.: 1D05-6038, (Fla. 1st DCA 2006)

On Oct. 31, 2006, the 1st District Court of Appeal approved a "treat" for claimants: reimbursement of transportation expenses for travel to and from the pharmacy of their choice (within a reasonable distance, we assume) for prescribed medicine. That is the extent of the holding. But!

Analysis

Following one of the more tortured track records in workers' compensation history, the Court finds this "right" essentially implied by an old (1964) Supreme Court case and the statute as a whole. Note further: in light of the obscure Section 440.13(3)(j), Fla. Stat, (giving claimant absolute right to choose pharmacy [unless that pharmacy charges more than the contract rate established by the carrier with another pharmacy] Section 440.13(12)(c) Fla. Stat.), the E/C cannot mitigate this new exposure by forcing a claimant to accept "delivered" prescriptions (unless delivered from pharmacy of claimant's choice), although certainly E/C may -- and should from here on in -- create inducements for a claimant to accept mailed or otherwise delivered medicines.

This ruling is now "the law" until and unless either the Legislature or Supreme Court provides otherwise (or, given there was one dissent, successful re-hearing effort, unlikely given the breadth and scope of the opinion). We will advise -- if there is a change.

Further Discussion: The Greater Concern Here

Can compensability of accidents to and from the pharmacy now be far off?

The statutory authority Section 440.092(5), Fla. Stat., would require a stretch of the following language: "(Intervening accidents) ... are not compensable unless suffered while traveling to or from a health care provider for the purpose of receiving remedial treatment for the compensable injury."

The point is, the court did quite a stretch with the holding in this case, and such "next step," while not a certainty, is not far fetched either.

Extended discussion is beyond the scope of this alert: may it suffice to say we note seven statements or concepts within the opinion that would make it difficult to deny an accident claim going to and from the pharmacy.

Surprisingly, this far greater exposure is not once mentioned in either the opinion or the strong dissent. Let's face it: transportation expense once or twice a month to a pharmacy is not a major concern (and may even introduce a more "target rich" environment for misrepresentations, which continue despite strong cautionary language within the forms). The great concern is possibly adding dozens of new opportunities for serious, even catastrophic/fatal accidents following a single, minor work accident -- with nightmare "course and scope" issues (especially given recent case law, e.g., IMC Phosphates Co. v. Prater, 895 So. 2d 1263 (Fla. 1st DCA 2005); convoluted facts where a claimant buys a car on the way to getting medical treatment, still found compensable) The legislature (Supreme Court?) would probably want to address this exposure if the 1st DCA itself does not put the brakes on this apparent extension of the law. This might turn out to be one scary Halloween decision!

Q and As:

To which claims does this apply?

It certainly applies to every trip to and from a pharmacy regardless of date of accident starting 10/31/06 -- that's easy.

What about claims already processed?

Unfortunately, because this is an interpretation of the way the law "has always been" (in pure legal theory), every open claim for which adequate documentation can still be presented seems likewise amenable to resubmission for these added transportation expenses.

What about "accidents" that have already happened during such trips?

We'll all learn together (and "untimely notice," standing alone, will likely be excused under these circumstances).

A Further Thought:

Many times our esteemed clients refrain from appealing a "bad" Order for fear of making "bad" law. It should be noted that in the hunt for direct precedent in this case the District Court found none, and so instead looked to JCC orders! Even though a judge in this case dissented from that precise use, it is now clear JCC orders themselves may be "persuasive" though not "controlling" on the District Court. In short; a JCC's order on a novel point, left unchallenged, is not necessarily "buried" anymore in this increasingly electronic age.

We at MKRS are pleased to bring to our esteemed claims clients important breaking news in our field. With both resolve and the capacity to implement it, MKRS will continue to advance the best interests of our Claims industry in the Courts of Florida wherever and whenever practicable. If anyone is in need of specific guidance we are of course available.

Supplied by H. George Kagan of the MKRS law firm. Kagan can be reached by e-mail at GeorgeK@mkrs.com, or phone at (800)761.MKRS.

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