Florida/Georgia Personal Injury & Workers Compensation

...rangement at the time she was hired. The JCC denied the motion finding that the employer and carrier "substantially" complied with the notice requirements and that a delay experienced by the appellant was minimal and did not prejudice the appellant. Section 440.134(2)(b), Florida Statutes (1997), provides that effective January 1, 1997, "the employer shall ......

...nd attendance for such period as the nature of the injury or the process of recovery provides." (Emphasis added). An insurer may not offer or utilize a managed care arrangement until it has been approved by the Agency for Health Care Administration. § 440.134(4), Fla. Stat. (1997). As the appellant correctly observes, under section 440.134(14), an insurer must make "a full and fair disclosure in writing of the provisions, restrictions, and limitations of the workers' compensation managed care arrangement to affected workers," including, at least, a description of the providers, a description on emergency or urgent care procedures, a description of the limitation on referrals, and a description of the grievance procedure. § 440.134(14), Fla. Stat. (1997). While notice of the grievance procedures must be given at the time the managed care system is "implemented," section 440.134(15)(c), Florida Statutes (1997), no time frame for disclosure of the remaining aspects of the managed care arrangement is specifically provided in the statute....

...Appellant has not identified any express statutory authority on which a JCC either could award medical treatment outside of an authorized managed care arrangement or could otherwise "strike" the managed care arrangement. Further, such authority cannot be reasonably inferred from section 440.134, since the statute clearly places the authorization and supervision of managed care arrangements *774 within the authority of the Agency for Health Care Administration. Appellant argues that unless a JCC has the authority to strike the managed care arrangement, the notice requirements under section 440.134(14) are meaningless and unenforceable. These notice requirements of section 440.134(14) are enforceable, however, by the Agency for Health Care Administration. See § 440.134(18)(e), Fla....

...Accordingly, we find the arguments raised on appeal to be without merit and the order under review is AFFIRMED. BOOTH, BENTON and VAN NORTWICK, JJ., CONCUR. NOTES [1] The record is silent as to whether appellant requested a change of provider as contemplated by section 440.134(10)(c), Florida Statutes (1997), or instituted a grievance under procedures established pursuant to section 440.134(15), Florida Statutes (1997).

...In response, the E/C filed a motion for summary order asserting that claimant was not entitled to a second opinion at the E/C's expense because the E/C *1129 did not participate in a managed care arrangement at the time of claimant's accident. The E/C argued a second opinion is authorized only under section 440.134, Florida Statutes, which governs the provision of benefits under a managed care arrangement....

...The E/C argued that the claimant was not entitled to receive IMEs outside the managed care plan, and that the JCC did not have jurisdiction over the matter until the claimant had exhausted the grievance process. The JCC ruled that when a managed care plan is in place, provision of medical services is governed by section 440.134....

...l witnesses (i.e., whether the JCC erred in her interpretation of the relevant statutes as limiting a claimant's choice of an IME physician to those within the carrier's managed care provider network). She argues that the exclusivity provision of subsection 440.134(16) is limited by its own terms to benefits provided under subsections 440.13(2)(a) and (b), necessarily excluding from the scope of managed care IMEs performed pursuant to subsection 440.13(5). The E/C argue that the managed care grievance provisions of 440.134(15) exclusively govern the provision of medical care and services....

...ction 440.13(5). Under our interpretation of the statutes, if the claimant was requesting the IMEs to resolve a dispute regarding the medical treatment she was receiving for her work-related injury, the JCC's denial of her request was proper because section 440.134 and rule 4.028(5)(d) require the claimant, where medical treatment is at issue, to first exhaust the procedures provided in the carrier's managed care plan of operation....

...The petition is therefore DENIED, without prejudice to the claimant's right to renew her motion for an IME before *573 the JCC for purposes authorized by the statutes. The claimant's motion for appellate attorney fees is also DENIED. KAHN and DAVIS, JJ., and SMITH, LARRY G., Senior Judge, concur. NOTES [1] Section 440.134, Florida Statutes (1995), sets out the provisions regarding "managed care arrangements." Subsection 440.134(15) requires grievance procedures for complaints from injured workers. Subsection 440.134(16) provides: When a carrier enters into a managed care arrangement pursuant to this section the employees who are covered by the provisions of such arrangement shall be deemed to have received all the benefits to which they are entitled pursuant to s....

...440.13(2)(a) and (b). In addition, the employer shall be deemed to have complied completely with the requirements of such provisions. The provisions governing managed care arrangements shall govern exclusively unless specifically stated otherwise in this section. Subsection 440.134(17) provides: Notwithstanding any other provisions of this chapter, when a carrier provides medical care through a workers' compensation managed care arrangement, pursuant to this section, those workers who are subject to the arrangem...

...When medical treatment is provided through managed care and the petition for benefits includes a claim for medical care under subsections 440.13(2)(a) and (b), Florida Workers' Compensation Rule of Procedure 4.028(5)(d) requires the petition to include a certificate that the grievance procedures required by 440.134(15) were exhausted before the petition was filed under 440.192(3)....

...E opinion on the issue of permanent impairment, notwithstanding the limitations on carrier IMEs in section 440.13. It also provides that a dispute as to MMI or PI "which is not subject to dispute resolution according to rules promulgated pursuant to s. 440.134 shall be resolved according to the procedures set out in this section." [5] Under subsection 440.134(10)(c), the claimant may request an alternate chiropractor and orthopedist from the carrier's medical care coordinator, who would refer her to alternate physicians in each specialty within the plan's provider network. She may also obtain a second opinion in each specialty within the provider network, see subsection 440.134(6)(c)9....

...Florida Statutes. Application of Managed Care System The employer/carrier argue that Rudd's petition for worker's compensation benefits was required to be dismissed because the employer/carrier had entered into a managed care arrangement pursuant to section 440.134, Florida Statutes (1994), and Rudd failed to file a grievance under the managed care system. See § 440.134(15), Fla....

...tition for benefits, as sought by the employer/carrier, would not be appropriate. The existence of a managed care arrangement would be relevant to the claim for medical treatment, but would not be dispositive of the claim for indemnity benefits. See § 440.134(16), Fla....

...Absent an emergency, only a claimant who has exhausted all avenues a managed care organization's grievance procedures provide can be eligible for medical care from an outside provider. The authority of the judge of compensation claims is limited in this area because section 440.134 "clearly places the authorization and supervision of managed care arrangements within the authority of the Agency for Health Care Administration." Farhangi v....

...of the work place injury in order to rely on the exhaustion requirement, citing Florida Distillers v. Rudd, 751 So.2d 754, 757 (Fla. 1st DCA 2000). Beginning January 1, 1997, however, managed care arrangements became mandatory for every insurer. See § 440.134(2)(b), Fla....

...itted libel per se by writing e-mails falsely accusing him of a crime; (4) committed fraud under section 440.105(4)(b)(1), Florida Statutes, by lying to him about not having formal grievance procedures; (5) committed a negligence per se violation of section 440.134(15), Florida Statutes, by failing to have a grievance procedure to address workers' compensation claims; and (6) committed intentional infliction of emotional distress by falsely accusing him of a crime....

...h counsel) requested authorization to see Dr. Graham-Smith for a second opinion regarding her treatment. Marine Canvas and its carrier refused to authorize such a second opinion on grounds that no managed care arrangement was in place. See generally § 440.134(6)(c)(9.), Fla....

...Sprehe (g) "vascular surgeon Finally, in the order under review the JCC referred to an "evaluation" by a vascular surgeon, but used the term IME with respect to Dr. Sprehe. Thus, from the record before us, we believe the "evaluation" by a vascular surgeon is, in substance, an IME. Where a managed care plan exists, under section 440.134(16), Florida Statutes (1997), the JCC must deny a claimant's request for an IME, if the purpose of the IME is to resolve a dispute regarding the provision of medical treatment, care and attendance. See Wiggins v. B & L Servs., Inc., 701 So.2d 570, 572 (Fla. 1st DCA 1997). Such disputes are to be resolved through a request for change *1041 of provider, see section 440.134(10)(c), Florida Statutes (1997), or a grievance under procedures established pursuant to section 440.134(15)....

...Because the claimant had exhausted the grievance process under her managed care arrangement (MCA), the Judge of Compensation Claims (JCC) had jurisdiction over the claimant's petitions. However, the resolution of the petitions continued to be governed by the MCA. See § 440.134(16), Fla....

...-care plan, including the grievance procedures, and then failed to respond to requests for medical services and to a letter properly characterized as a grievance within the time required by rules promulgated by AHCA. This court commented that "while section 440.134(16), Florida Statutes ....

...Employer/Carrier seek certiorari review of a Judge of Compensation Claim's order granting a motion for an independent medical examination at Employer/Carrier's expense. We grant review, and reverse the Judge of Compensation Claim's order. When an employee is covered under a managed care arrangement pursuant to section 440.134, Fla....

...Stat. (1997), the JCC has authority to determine indemnity benefits, but lacks authority to determine entitlement to medically necessary remedial treatment, care and attendance if the claimant has not exhausted existing managed care procedures. See §§ 440.134(2)(b) and 440.134(16); Florida Distillers v....

...treatment, not indemnity benefits. Therefore, the JCC departed from the essential requirements of law by ordering the psychiatric IME before Claimant had exhausted the existing managed care procedures, including its grievance procedure, pursuant to section 440.134....

...Because of this disposition, it is unnecessary for us to address the remaining issues raised by the employer and carrier. Background On August 20, 2003, claimant suffered injuries to her wrist, shoulder, hip and back. Claimant's employer initially provided medical care pursuant to a managed care arrangement as authorized by section 440.134(2)(a), Florida Statutes (2002)....

...Macksoud as her one-time change in doctor. Claimant began treatment (which included surgery) with Dr. Macksoud in December 2003, and continued to treat with him for four years. On January 1, 2006, the employer and carrier discontinued their managed care arrangement as permitted by section 440.134(2)(a), Florida Statutes (2005)....

...pursuant to Florida workers' compensation law, she has received all to which she is legally entitled. Under Florida worker's compensation law, an employer and carrier may elect to deliver medical benefits by an approved managed care arrangement. See § 440.134(2)(a), Fla. Stat. (2002). When they do so, workers subject to the managed care arrangement must receive medical services for work-related injuries as prescribed in the contract. See § 440.134(17), Fla....

...Under the managed care statute, the managed care plan must include a provision for the employee's selection of a primary care provider, one change to another provider, and one second opinion within the same specialty and provider network as the treating physician. See §§ 440.134(10)(c), 440.134(6)(c) 9-10, Fla....

...Section 440.13(2)(f), Florida Statutes (2009), provides that “[u]pon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course *946 of treatment for any one accident.” Section 440.134(10)(c), Florida Statutes (2009), likewise provides that a managed care arrangement must grant the right to “one change to another provider within the provider network as the authorized treating physician during the course of treatment for a work-related injury, in accordance with the procedures provided in s. 440.13(2)®.” The plain language of section 440.134(10)(c) requires the injury to be a “work-related injury.” The JCC here found Claimant presented no “persuasive medical evidence” that an injury arose out of employment, and Claimant does not challenge that finding....

...Kohout seeks an independent assessment of the cause or etiology of his medical condition. An employer or its workers' compensation insurance carrier may provide medical diagnosis and treatment through a managed care arrangement that meets statutory requirements. See § 440.134(2)(a), Fla....

...1st DCA 1999). In such cases, the employee has no right to go outside the managed care arrangement for an independent evaluation as to diagnosis or treatment without following the grievance *1165 procedures required by the managed care arrangement. See § 440.134(15)-(16), Fla. Stat. (2000); Weather Eng'rs v. Presgraves, 774 So.2d 938, 939 (Fla. 1st DCA 2001) ("When an employee is covered under a managed care arrangement pursuant to section 440.134, Fla....

...h he was furnished authorized medical care by his employer and its workers' compensation carrier (E/C), under a managed care arrangement. Claimant sought to exercise his right to select or change his primary care provider, as seemingly guaranteed by section 440.134(6)(c)10., Florida Statutes (2008), and Florida Administrative Code Rule 59A-23.003(7)(i) (providing injured employee "shall have the right to select a primary care provider and thereafter, to request one change of primary care provider....

...o persuasively establish such a right. The JCC alternatively concluded that Claimant was required to prove that a primary care provider, or a change in same, was medically necessary. Because every workers' compensation managed care arrangement under section 440.134 "must include" a provision "for the selection of a primary care provider by the employee," and further, because the Florida Administrative Code Rule regulating managed care authorization procedures provides that every "injured employe...

...during the course of treatment for each injury," we conclude it was error for the JCC to require Claimant to introduce the managed care plan into evidence to establish such a legal right. The right is established as a matter of legislative decree, to which any contractual rights would be subordinate. See § 440.134(6)(c)10., Fla....

...nstituted a per se diminution of claimant's entitlement to benefits, relying upon the reasoning of this court in Wiggins v. B & L Services, Inc., 701 So.2d 570 (Fla. 1st DCA 1997). In that case, the issue was whether a managed-care arrangement under section 440.134, Florida Statutes (1995), could limit the claimant's choice of an IME physician to those within the carrier's managed-care provider network....

...211(1)(b), allowing the parties to a CBA to agree upon "[t]he use of an agreed-upon list of certified health care providers of medical treatment which may be the exclusive source of all medical treatment under this chapter." (Emphasis added.) Unlike section 440.134, interpreted by Wiggins to apply only to requests for IMEs involving exclusively medical care, [5] and not to claims for IMEs for the purpose of determining an injured employee's entitlement to potential indemnity benefits, the langua...

...ion 440.13(5)(a) states in part: "In any dispute concerning overutilization, medical benefits, compensability, or disability under this chapter, the carrier or the employee may select an independent medical examiner." [5] Wiggins relied primarily on section 440.134(16), which refers to the medical care described under subsections 440.13(2)(a) and (b), Florida Statutes (1995), involving "medically necessary remedial treatment, care, and attendance."

...Analysis Because resolution of this issue requires statutory interpretation, our review is de novo. See Lombardi v. S. Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004). Two provisions, one statute and one rule, are relevant in this analysis. Section 440.134(6)(c)10., Florida Statutes (2000), provides that the managed care plan of operation must include "[a] provision for the selection of a primary care provider by the employee from among primary providers in the provider network." Florid...

...[1] We hold that the JCC had no jurisdiction to determine the medical necessity pending Claimant's exhaustion of her employer's managed care grievance procedure. Claimant concedes that she failed to exhaust the managed care grievance procedure, as required by statute, before she filed her petition for these benefits. Section 440.134(16), Florida Statutes (1997), provides a presumption that an employee "shall be deemed to have received all the benefits to which they are entitled pursuant to s....

...440.13(2)(a) and (b)." The employer entering into such a managed care arrangement is deemed to have complied completely with the managed care provisions, and those provisions "shall govern exclusively unless specifically stated otherwise in this section." § 440.134(16). Also, section 440.134(16) provides a presumption that covered employees "shall be deemed to have received all the benefits to which they are entitled pursuant to s. 440.13(2)(a) and (b)." If dissatisfied with the managed care received, an employee must file a grievance pursuant to procedures established by the Agency for Health Care Administration. §§ 440.134(1)(d) and 440.134(15)(a), Fla....

...REVERSED and REMANDED. BOOTH, KAHN and BROWNING, JJ., concur. NOTES [1] As an alternate ground for denying these benefits, the JCC correctly ruled she lacked jurisdiction because Claimant failed to exhaust the managed care grievance procedures, as required by section 440.134, Florida Statutes (1997)....

...(D) If medical care is being provided to the employee through managed care and the petition includes a claim for medical care under section 440.13(2)(a) and (b), Florida Statutes, the certificate must indicate that the grievance procedures required by section 440.134(15), Florida Statutes, were exhausted before filing the petition under section 440.192(3), Florida Statutes....

...mendments to chapter 440, Florida Statutes. The request or application for hearing is now incorporated in the petition and no longer is a separate pleading. The grievance procedures referred to in subdivision (a)(5)(D) are the procedures required by section 440.134(15), Florida Statutes, and not chapter 120, Florida Statutes....

...Claimant’s counsel notified the petitioners that claimant would not attend the appointment because the employer/carrier was only entitled, by statute to an independent medical exam. The petitioners then moved to compel claimant’s attendance. The JCC denied the petitioners’ motion, stating in the order: “[S]ection 440.134 only provides an injured worker the right to a second medical opinion. Had the legislature intended that the employer/carrier have the same right, it could have easily indicated such in 440.134. Having not done so, I am compelled to apply the statute as it is written, and not as one party or another would like to have it written.” Section 440.134, Florida Statutes, which governs workers’ compensation managed care arrangements, provides that an insurer may not offer a managed care arrangement until its managed care plan of operation has been approved by the Agency for Health Care Administration (AHCA). The statute also sets forth requirements of a managed care arrangement. Section 440.134(6)(c) provides that the plan must include: A description of the quality assurance program which assures that the health care services provided to workers shall be rendered under reasonable standards of quality of care consistent with the prevailing standards of medical practice in the medical community....

...1st DCA), the claimant moved to strike the managed care arrangement because she was not provided notice of the arrangement when she was first employed. The JCC denied the motion. On appeal, the claimant argued that unless a JCC had authority to strike a managed care arrangement, the notice requirements under section 440.134(14) were meaningless and unenforceable....

...express authority on which a JCC either could award medical treatment outside of an authorized managed care arrangement or otherwise “strike” the managed care arrangement. As the panel noted, such authority could not be reasonably inferred from section 440.134, because the statute clearly places the authorization and supervision of managed care arrangements within the authority of the AHCA....

...The provision at issue, allowing the request for a second medical opinion to be made by someone other than the claimant, was apparently submitted to AHCA as part of the proposed plan and approved. In determining that the motion to compel could not be granted because section 440.134 did not expressly provide that insurers may include the right of employer/carriers to request a second medical opinion, the JCC effectively struck a portion of the plan....

...Pursuant to the decision in Farhangi , this was beyond the authority or jurisdiction of the JCC. We deny, however, the petition for writ of certiorari. The present dispute involves the validity and enforcement of a provision of a managed care arrangement. As noted above, section 440.134 clearly places the authorization and supervision of managed care arrangements within the authority of the AHCA....

...are grievance procedures before filing a petition for benefits under section 440.192(3), Florida Statutes (1995), any claims for benefits under section 440.13(2)(a) and (b), Florida Statutes (1995), brought after the grievance procedures required by section 440.134(15) are exhausted are to be determined by a judge of compensation claims and not by administrative appeal brought under chapter 120, Florida Statutes (1995)....

...(D) If medical care is being provided to the employee through managed care and the petition includes a claim for medical care under section 440.13(2)(a) and (b), Florida Statutes, the certificate must indicate that the grievance procedures required by section 440.134(15), Florida Statutes, were exhausted before Sling the petition under section 440.192(3), Florida Statutes....

...3 amendments to chapter 440, Florida Statutes. The request or application for hearing is now incorporated in the petition and no longer a separate pleading. The grievance procedures referred to in subdivision (a)(5)(D) are the procedures required by section 440.134(15), Florida Statutes, and not chapter 120, Florida Statutes....

by a managed care arrangement pursuant to section 440.134, Florida Statutes (1997), and managed care

BARFIELD, J. AFFIRMED. The judge of compensation claims (JCC) correctly construed section 440.134(6)(c)9, Florida Statutes, which requires a managed care plan to include a process allowing an injured employee to obtain one second opinion in the same specialty, but does not afford the injured employee an automatic right to a second opinion evaluation....

...tances, and that her mere dissatisfaction with her treating orthopedic physician’s “attitude” was insufficient to support her claim for a second opinion. We note that the claimant had previously obtained a change in orthopedic physicians under section 440.134(10)(c), Florida Statutes....

PER CURIAM. In this workers’ compensation case, the claimant seeks review of an order denying her request for an independent medical examination because the employer had in effect a managed care plan on the date of the accident, as contemplated by section 440.134, Florida Statutes (1997)....

...arding whether the claimant had reached maximum medical improvement and whether she had any permanent impairment, rather than a dispute regarding medical care provided by the managed care plan; and that, therefore, the grievance procedure set out in section 440.134 is inapplicable....

...It is equally apparent that no dispute existed regarding the medical care that had been provided by the managed care plan. Because claimant was not seeking the independent medical examination to resolve a dispute regarding the medical care that had been provided by the managed care plan, the provisions of section 440.134 were inapplicable....

PER CURIAM. In this workers’ compensation case, Claimant challenges an order of the Judge of Compensation Claims (JCC) denying a claim for a change in treating provider made under section 440.134(10)(c), Florida Statutes (2006)....

...Claimant also challenges the JCC’s denial of attorney’s fees and costs relative to the claim for a change in medical providers. We conclude that the JCC erred when he found Claimant had previously exercised her statutory right to a change in providers by selecting her primary care provider as permitted by section 440.134(6)(c)10. — a right which is separate and independent from the statutory right provided for in 440.134(10)(c). Because the record does not support the JCC’s finding that Claimant has already exercised her right to a change in physician under section 440.134(10)(c), we REVERSE and REMAND for the entry of an order permitting Claimant to exercise her right under this statute and awarding attorney’s fees and costs....

...1st DCA 2000) (holding that a JCC lacks jurisdiction to consider a petition filed before the claimant has exhausted the managed-care grievance procedures). Appellant argues that the JCC erred in so ruling in that the E/C failed to comply with the obligations required by section 440.134(14), Florida Statutes (Supp.1998), directing it to disclose to the injured worker in writing the provisions of the managed-care plan, including the grievance procedures....

...-care arrangements. It is, in fact, written into the managed-care statute itself by requiring, among other things, that such services be provided with reasonable promptness, and that grievances within the system be considered in a timely manner. See § 440.134(5)(a) & (15)(d), Fla....

...In drafting this mechanism as an alternative to the formal claim procedure, the legislature clearly did not contemplate that a request for medical benefits should be ignored for a protracted period of time; yet, this is precisely what happened in the present case. It is true that section 440.134 does not explicitly state the conditions under which the managed-care grievance procedures may be defaulted and a worker given the option of proceeding with a formal petition before a JCC. Nevertheless, the legislature has granted the Agency for Health Care Administration (AHCA) broad powers to adopt rules regulating the authorization and examination of managed-care arrangements. § 440.134(25)(a), Fla....

...es imposed on it. In our judgment, the complete and utter failure of the insurer and Protegrity to fulfill the duties specified in rule 59A-23.006 cannot be used as a means of raising a jurisdictional bar to a claim. Additionally, we note that while section 440.134(16), Florida Statutes (Supp.1998), provides a presumption that a claimant has received all necessary benefits under a managed-care system, the statute does not create a presumption that the E/C necessarily fulfilled its notice duties in the grievance process. Initially, the E/C faded to provide claimant with any educational material following his injury, as required in rule 59A-23.006(2) and section 440.134(14)....