Recently, there has been an influx of JCC cases where claimant’s counsels are challenging “authorized physicians” by the nature of the fee agreements entered into between the physicians and the adjusters exceeding statutory guidelines. While the statutory section on physician’s fee agreements is nothing new, it is a provision that has not often been used as a sword to strike authorized providers. It is common practice for authorized physicians to require adjuster/carrier written fee agreements before treatment of a claimant can commence. It is also common practice for adjusters to sign such agreements without any consultation or review by defense counsel. Unfortunately, the wording of these agreements has often lacked consistency with the statutory language and in doing so, jeopardizes the “authorized” physician status in a case. These agreements are very important as they can lead to disqualification of a physician entirely or a change in classification from “authorized” to IME, despite the adjuster’s intent to authorize a provider rather than use a one time expert/IME.
Fla. Stat. §440.13(13)(b) states “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.”
JCC Ring in the Ft. Lauderdale district denied a motion to deauthorize and strike the opinions of the authorized orthopedic physician because the fee agreement specifically tracked the same language in Fla. Stat. §440.13(13)(b) for the deviation from the fee schedule. See Sandra Gomez v. ABM Aviation Inc and ESIS WC Claims, OJCC# 19-013211.
In Susan Quasha v. Chico’s SAS and Corvel Corporation, OJCC# 17-025981, however, JCC Johnsen in West Palm Beach ruled to the contrary when he found the fee agreement was in excess of the statutory fee schedule because the language of the agreement did not include any of the protocols or guidelines mentioned in Fla. Stat. §440.13(13)(b). Instead of striking the physician’s opinion entirely, JCC Johnson designated the physician as Employer/Carrier’s IME. This case is a good example of burning your IME without any intention to do so.
While the statutory fee provision is not new, it is certainly being utilized often by claimant’s counsels in an attempt to gain control of medical care. One of the most important cost management factors afforded to Employer/Carriers is the ability to maintain control of medical care throughout a claim by choice of providers. In order to maintain that control, fee agreements with providers should always be reviewed by defense counsel prior to execution by adjusters/carriers to ensure the statutory language is followed and the agreement will not jeopardize the “authorized physician” status. While Employer/Carriers are directed to ensure claimants receive necessary medical treatment in a timely fashion, it should not be in such a rush that contractual agreements are entered into lightly. Fee agreements are often overlooked or executed in haste to get the claimant to an initial or new provider/specialty, however, it is crucial for adjusters and their counsel to review provider’s contractual fee agreements as they are requested to ensure they comply with the statutory guidelines, so as to avoid a potential costly issue and consequence to defenses in the claim, which can be prevented with consistent statutory language added to a physician’s fee agreement.