Clair v. Glades County Bd. of Com'rs

635 So. 2d 84, 1994 WL 17259
CourtDistrict Court of Appeal of Florida
DecidedJanuary 25, 1994
Docket91-3997
StatusPublished
Cited by2 cases

This text of 635 So. 2d 84 (Clair v. Glades County Bd. of Com'rs) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clair v. Glades County Bd. of Com'rs, 635 So. 2d 84, 1994 WL 17259 (Fla. Ct. App. 1994).

Opinion

635 So.2d 84 (1994)

Cloyd E. CLAIR, Appellant,
v.
GLADES COUNTY BOARD OF COMMISSIONERS and Insurance Servicing & Adjusting Company, Appellees.

No. 91-3997.

District Court of Appeal of Florida, First District.

January 25, 1994.

Dawn E. Perry-Lehnert Harry A. Blair, P.A., Fort Myers, for appellant.

Gerald W. Pierce, Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for appellees.

ERVIN, Judge.

In this workers' compensation case, appellant/claimant appeals the judge of compensation claims' (JCC's) denial of her claims for continued palliative care with an authorized chiropractor, and payment of the chiropractor's outstanding bills, exercise equipment, membership in either a gym or a therapeutic exercise program, penalties, interest, costs, and attorney's fees. Because we consider that the issue in the instant case is controlled by the decision of this court in Alford v. G. Pierce Woods Memorial Hospital, 621 So.2d 1380 (Fla. 1st DCA 1993), we affirm. Nevertheless, we also consider that, for the reasons expressed infra, Alford was incorrectly decided, and therefore certify a question to the Florida Supreme Court regarding whether a physician practicing outside the peer group of the physician authorized to treat an employee is qualified to offer an opinion that the *85 continuation of such furnished care is not reasonable and necessary.

On November 3, 1983, appellant injured her back in a work-related accident, which was accepted by the employer/carrier (E/C) as compensable. In 1986, her right to future compensation benefits was settled by a lump-sum payment that did not affect her entitlement to future medical benefits. She continued to be treated by Dr. Crowley, a chiropractor. Subsequently the E/C discontinued payments of the chiropractor's bills and, in support thereof, produced the deposition testimony of Dr. Arpin, a neurosurgeon, and Dr. Conant, an orthopedic surgeon, both of whom stated that claimant's continued chiropractic treatment was neither reasonable nor necessary.

Appellant testified at the hearing that she continued to suffer pain in her back, legs, and shoulders, and the only relief she has received is temporary easement of the pain by the chiropractic treatments. Contrary to the testimony of Drs. Arpin and Conant, Dr. Crowley testified that continuing chiropractic care was in fact reasonable and necessary. In accepting the opinion testimony of Drs. Conant and Arpin over that of Dr. Crowley, the JCC noted that claimant had been furnished chiropractic treatment during an extremely long period of time for essentially a soft tissue injury, yet remained in constant pain. The judge considered that her ongoing pain raised a question concerning the continued effectiveness of Dr. Crowley's treatment. The judge also accepted Dr. Arpin's opinion that reliance upon weekly chiropractic treatment was not in the claimant's best interest and should be terminated, and that claimant's needs would be better served by her enrollment in an exercise program.

At the outset of the hearing on the claims, appellant's attorney specifically objected to the opinion testimony of Drs. Arpin and Conant, arguing that chiropractic physicians "should be judged by their own peers in that sense as to what's reasonable chiropractic care, not someone — outside that specialty that may have prejudice against that whole type of treatment and not understand it, even though they may be a medical doctor." Nevertheless, the JCC determined that further chiropractic care was not reasonable and necessary, based upon the opinion testimony of Drs. Conant and Arpin, and did not specifically address the argument claimant's attorney raised at the hearing.

Appellant, initially unrepresented by counsel on her appeal, filed a rambling, digressive brief which raised numerous points, including whether Dr. Crowley's treatment was properly denied, and whether her treatment was reasonable and necessary. Thereafter, an attorney filed a reply brief on appellant's behalf; but, after considering the briefs, and because Alford, which involved the same issue, was pending, we ordered the parties in the instant case to file supplemental briefs addressing the issue of whether Section 440.13, Florida Statutes, permits a physician, practicing outside the peer group of the physician whose care had been authorized, to opine as an expert that the furnished care is not reasonable and necessary.

In questioning whether Drs. Arpin and Conant are qualified to express such opinion, we note that Section 440.13(2)(a), Florida Statutes (1983),[1] provides in part:

The carrier shall not deauthorize a health care provider furnished by the employer to provide remedial treatment, care, and attendance, without the agreement of the employer, unless a deputy commissioner determines that the deauthorization of the health care provider is in the best interests of the injured employee. Any list of health care providers developed by a carrier not including pharmacists from which health care providers are selected to provide remedial treatment, care, and attendance shall include representation of each type of health care provider defined in s. 440.13(3)(d)1.d, Florida Statutes, 1981, and shall not discriminate against any of the types of health care providers as a class.

(Emphasis added; footnote omitted.)

Section 440.13(3)(d)1.d, Florida Statutes (1981), referred to in subsection 1(2)(a) above, provides:

*86 "Health care provider" means a physician licensed under chapter 458, an osteopath licensed under chapter 459, a chiropractor licensed under chapter 460, a podiatrist licensed under chapter 461, an optometrist licensed under chapter 463, a pharmacist licensed under chapter 465, or a dentist licensed under chapter 466.

In our interpretation of the above provisions, we have stated that an E/C may be responsible for unauthorized medical care when a claimant has requested medical treatment by one of the classes of physicians described in the statute, but the E/C has instead offered alternative treatment from a different class, if it later appears that the requested treatment was reasonable and medically necessary. Kirkland v. Harold Pratt Paving, Inc., 518 So.2d 1320, 1324-1325 (Fla. 1st DCA 1987), review denied, 525 So.2d 878 (Fla. 1988). For example, if an E/C extends only orthopedic or neurological care after a claimant has specifically requested chiropractic care, the E/C's offer "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." Id. at 1325. This does not mean that an E/C is required to offer a list of health care providers solely from the class of providers requested by an employee; however, the "carrier's list of health care providers must include a representative of each type of provider defined in Section 440.13(1)(f), Florida Statutes."[2]Deriso v. Great W. Meats, 534 So.2d 748, 749 (Fla. 1st DCA 1988).

The above opinions clearly state that during the selection process of a requested list of physicians, discrimination against a specific requested class may occur if an E/C fails to offer a representative from such class. We consider that section 440.13 may also reasonably be interpreted as stating that discrimination occurs as well during the deauthorization process if a JCC relies upon the testimony of a physician practicing outside the peer group of the physician whose care was furnished in reaching any decision to deny such treatment.

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Related

Shaw v. Caldor, Inc., No. Cv940135645 (Feb. 23, 1995)
1995 Conn. Super. Ct. 1409-B (Connecticut Superior Court, 1995)
Clair v. GLADES COUNTY BD. OF COM'RS
649 So. 2d 224 (Supreme Court of Florida, 1995)

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Bluebook (online)
635 So. 2d 84, 1994 WL 17259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clair-v-glades-county-bd-of-comrs-fladistctapp-1994.