Florida Court Reverses Award Requiring Employer to Pay for Kidney Removal Based on Hindrance of Treatment Doctrine

A Florida appellate court recently reversed an order by a Judge of Compensation Claims requiring the employer/carrier to provide Claimant with treatment for a renal mass/cancer to the extent that it was a hindrance to treatment of a compensable lumbar spine injury [Sears Outlet v. Brown, 2014 Fla. App. LEXIS 19939 (1st DCA, Dec. 9, 2014)]. Observing that the JCC found the “self-help” medical treatment provision [§ 440.13(2)(c), Fla. Stat.] applicable based solely on the JCC’s determination that the E/C wrongfully denied the medical care, the court indicated § 440.13(2)(c) expressly provides that there must be a specific request for treatment or care, and the employer or carrier must be given a reasonable time period within which to provide the treatment or care, before a claimant is entitled to recover any amount expended for initial treatment or care. Here it was undisputed that there was no such request, nor was the E/C given the opportunity to provide the care. It was error, therefore, for the JCC to require the E/C to pay for the treatment.

Claimant experienced a recurrence of back pain after undergoing low back surgery to treat a compensable injury. During an authorized orthopedic workup for a second back surgery, an MRI revealed a right kidney mass suspicious for renal cancer. The E/C subsequently authorized a urologist to clear Claimant for the proposed back surgery. The urologist referred the worker to a hospital for further diagnostic testing with partial or complete removal of the kidney. Instead of requesting the recommended kidney diagnostics and surgery from the E/C, Claimant had the procedure done at a hospital on an unauthorized, non-emergency basis. Only after the procedure was complete (with Claimant’s kidney being removed resulting in a final diagnosis of renal cancer) did Claimant ask the E/C to pay for such treatment.

It was undisputed that the kidney mass needed to be removed before Claimant could undergo further evaluation of the low back, have the back surgery, or take additional anti-inflammatories. Applying the hindrance-to-recovery doctrine, the JCC determined that the E/C was responsible for treating the unrelated kidney condition to the extent necessary to remove the hindrance it created to treating the compensable back injury. The JCC also ruled that Claimant’s failure to request authorization for the kidney surgery was excused under the self-help provision of § 440.13(2)(c), Fla. Stat. Accordingly, the JCC directed the E/C to pay the hospital for the admission for the kidney surgery and to reimburse Claimant for the related payments he made directly to the hospital. As noted above, the appellate court found the JCC’s decision to be in error.

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2 Responses to Florida Court Reverses Award Requiring Employer to Pay for Kidney Removal Based on Hindrance of Treatment Doctrine

  1. John Chamberlain says:

    Raises an interesting question. What is workers’ compensation really about? No one questions the need for kidney removal, and the need to do so to allow back surgery. No amount of notice to the employer, no further “investigation” by the employer would have changed that. What was needed was medical care. Instead, payment was turned down because “notice” was not given. This is to introduce into the workers’ compensation a stupid and unnecessary administrative step, a trap for the unwary like the old medieval common law fixation on form over substance, which led to the courts of equity to sort the rubbish out. Now, instead of workers’ compensation being a straight forward simple administrative remedy, we have arcane rules and regulations, hair splitting nonsense. What next? The claim is denied because the the claimant did not give prior notice of his accident a minimum of 48 hours before it occurs?

    • I generally agree with you here, John. I think here there was no dispute that the kidney removal surgery was going to have to take place to continue the comp treatment. It does bring to the forefront the issue of self-procured treatment, however. Workers’ compensation isn’t a hospitalization insurance policy, but rather a partnership in which both the injured employee and the employer/insurer are deemed to have a vested interest in the recovery and return to work of the former. According to the case, there was no emergency here. The statute doesn’t require 48-hour notice. An employer might appropriately ask whether the claimant is free at her own whim to disregard the statute? Decisions like this don’t help the argument that the Florida Act, as currently being administered is fair, however. The case has been remanded. I wonder what happens when the JCC again decides in favor of the claimant, perhaps on the grounds that no harm was done by the claimant’s actions, that the care would have been required to be paid, and that the insurer wasn’t prejudiced by the lack of notice. Somewhat like the case we discussed a year or so ago, where the PA Bureau chose an MD from its own list to perform an IME, then after the IME was performed and the MD’s opinion introduced as evidence, ruled that the opinion was inadmissible because the MD, although board-certified, was not “competent” to testify because she had altered the structure of her medical practice. At the time I said it was a waste of time and resources. Having the Florida case remanded and heard again similarly wastes time and resources. Many thanks for your interest. Warm regards.

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