The Right to Privacy in Comp

The Florida First District Court recently published Varricchio v. St. Lucie County Clerk of Courts, 1D-17-3229. This appeal involved a claim for temporary indemnity benefits, which necessarily required a determination of the date of maximum medical improvement. In Florida workers' compensation, that date is the demarcation line between "temporary" and "permanent" indemnity benefits as well as dividing "remedial" (to provide lasting improvement) and "palliative" (to provide periodic but temporary alleviation of symptoms) medical care. 

There are three main legal issues in the decision worthy of discussion, but also references to two of the "standards of review" in appellate proceedings that always bear reinforcement. These three are (1) the assignment of MMI, (2) the duty of an employer to investigate medical status, including the application of equitable estoppel, and (3) a Floridian's constitutional right to privacy, and the particular application of it that may be different in workers' compensation because of the nature of that legal system.

The first issue is maximum medical improvement (MMI). In this case a  neurosurgeon provided care and later placed the worker "at neurosurgical MMI." But, the worker had since come under the care of "a pain management physician." Thus from one perspective (neurosurgery), the worker had improved as much as was reasonably expected, but remained under remedial care with the pain management doctor. Thus, she was not at "overall MMI." It is overall MMI that demarcates the two categories of benefits, permanent indemnity and palliative care from temporary indemnity and remedial care. Because of the involvement of multiple medical specialties, overall MMI is frequently a legal issue in workers' compensation cases. 

The pain management physician performed a procedure in June 2015, and expected the worker to return two weeks later. The worker testified, however, that she was not told to return. She eventually returned "almost a year" later, describing "100% pain relief " after that procedure, but with symptoms appearing again "two weeks prior to her return." In this regard there were potential issues of patient compliance, and her status during the year between visits. In such situations, a judge may be called upon to make various factual decisions.

The pain management physician completed two forms that said MMI had been reached, but did not specify on what date that occurred. Then, in November 2016, he completed a form and opined that the worker suffered a permanent impairment rating. Based upon that rating, the employer/carrier ("E/C") began paying impairment (permanent) indemnity benefits. It also filed a form with the state indicating MMI (overall) was November 30, 2016. 

But, the workers sought temporary benefits for a period between September 26, 2013 and that MMI date. In the litigation that ensued, the pain management physician testified that "Claimant was likely at MMI . . . on June 10, 2015" (after the procedure that was performed). The doctor explained in retrospect that the delay in notifying the E/C resulted from the worker not returning for follow-up two weeks after that June 2015 procedure.

Thus, at one point in time, there was imperfect information regarding the actual date of MMI. The injured worker contended that the employer should have sought clarification to illuminate that imperfection (when the forms arrived that mentioned MMI, but which did not state a date). In this instance, it was apparently only through the course of litigation that the doctor effectively communicated the MMI date; that was how the worker learned of her status, retroactively. 

The trial judge accepted the pain management physician's opinions and denied the claim for temporary indemnity benefits (because the worker had reached MMI) after June 10, 2015. When MMI occurs is certainly a "medical decision," but the medical professionals express their respective opinions, which may differ. The judge then determines which of those opinions is fact, that is she/he resolves any conflict in the testimony. As the Court explained, there were no other medical opinions in evidence in this case, thus the pain management doctor's conclusions were uncontroverted. 

The Court then reiterated the appellate "standards of review." These are essentially rules by which appellate courts decide whether to affirm or reverse a trial judge. For issues of fact (whether something did or did not happen), "the standard of review is competent, substantial evidence (“CSE”)." This means the reviewing Court asks whether there is evidence to support some factual conclusion (such as the worker has reached MMI). This is not a re-weighing of the evidence.  

The Court is not making credibility decisions or deciding what conclusions it would have reached in the trial judge's shoes. As it noted: "this Court does not substitute its judgment for that of the JCC on matters supported by CSE." The Court in a CSE review is asking merely whether there is evidence to support what the trial judge decided. Because the pain management physician opined as to an MMI date, the judge's legal conclusion of that date being the MMI date was supported by CSE.

The Court also explained that if the alleged error is not factual, but regards instead an interpretation of the law, then "the standard is de novo." This means "anew"; In such a review, the Court is not influenced by the trial judge's conclusions about the law. The Court interprets the law itself, and applies it to those facts determined by the trial judge. Thus in factual issues a court somewhat defers to a trial judge, but not in issues of legal interpretation. 

The second important legal analysis for the appellate court tied this CSE analysis into the MMI issue. The Court noted that the doctor was imprecise in expressing opinions. However, the trial judge selected the opined date and the doctor's "rationale for assigning" it. Notably, that doctor's opinions were "the only medical evidence . . . related to the . . . pain management MMI." This evidence was uncontradicted by other expert testimony. That does not mean the trial judge was obliged to accept this testimony, but his decision to accept it was supported by CSE. 

The Court reminded that it is not necessary that a physician must evaluate or see a patient on the date she or he opines is the date of MMI. However, "there must be an evidentiary foundation to support such an assignment." In other words, essentially, the physician  must explain the selection of any particular date to the satisfaction of the trial judge. 

Part of this second significant issue was the worker's contention that the employer/carrier was obligated to seek clarification on the opinions of the pain management physician. After all, workers' compensation is intended to be self-executing. Had it sought such clarification, then the establishment of the MMI date might have been more contemporaneous to the actual date. It seems that it would nonetheless have likely been retrospective, but the delay in the rendering of that opinion would perhaps have been shorter. This argument was termed by the Court as one of "equitable estoppel," essentially that the E/C should not be allowed to deny benefits having not investigated and established the MMI facts sooner. 

The Court dispatched this argument reiterating the requirements for equitable estoppel. The Court explained: 

"to demonstrate estoppel, the Claimant must establish that: (1) the E/C misrepresented a material fact; (2) the Claimant relied on the misrepresentation; and (3) the Claimant changed her position to her detriment because of the misrepresentation."

The apparent failing in the application of these requirements to this case being the absence of misrepresentation of "a material fact." The E/C may not have pursued information from the pain management physician (or the information may not have been supplied despite pursuit), but the Court did not identify an instance of information being misrepresented. 

Finally, the Court addressed the "Constitutional Right to Privacy." In this instance, the attorney for the E/C had a meeting with the pain management doctor in the course of the litigation. The doctor thereafter noted the MMI date decision on a questionnaire (some might argue this was in pursuit of that self-executing illumination of the imperfect documentation). The worker contended that this meeting violated the workers' right to privacy. While acknowledging prior decisions that concluded an employer has the right in workers' compensation to discuss medical issues with the doctor, the worker contended that statute changes in 2003 and a recent Florida Supreme Court decision altered this right. 

The Court acknowledged every Floridan has a right to "the person's private life," a "fundamental right." When there is an "expectation of privacy, considering all the circumstances" a Floridian can expect privacy. However, the Court found no such expectation when the statute, section 440.13(4)(c), provides specifically for such contact and the discussion of medical issues that are claimed in a workers' compensation case. Notably, such contact might be the most expeditious manner of addressing questions left ambiguous by a doctor's completion of form as occurred in this case. 

The second argument, that The Florida Supreme Court decision in Weaver v. Myers, 229 So. 3d 1118 (Fla. 2017)(a medical malpractice action), overruled the prior workers' compensation decisions regarding privacy, was  likewise unpersuasive to the Court. It explained that "the Weaver court distinguished" (that is did not overrule) a prior workers' compensation decision regarding such doctor contact. It expounded that workers' compensation is a "a self-executing system" that needs such contact and discussion of medical opinions, and that the conditions discussed in this instance were not unrelated to the work accident, but the very focus of it. 

As an aside, the Court's logic may demonstrate broader explanation of how a statute might be unconstitutional in the context of one process, such as civil tort litigation, and yet not be so viewed in the workers' compensation process. Some may see parallels here to the Florida Supreme Court decision in Delisle v. Crane, 258 So. 3d 1219 (Fla. 2018); Discussed in Dissing Daubert.

The Court explained that while the 2003 statutory amendments might be interpreted to have expanded the possible scope of such medical conversations, generally, no such expanded scope discussion occurred in this case. The Court explained that if that law were used to discuss unrelated medical issues, then perhaps such a privacy argument might be more persuasive. But here, this injured worker did "not demonstrate injury that is anything more than conjecture," that is that the statute could be misused, not that it was in fact misused as to her treatment, medical history, or privacy. The Court reminded that to prevail on her claim that this statute is unconstitutional, the worker would have to prove “an injury which is both real and immediate, not conjectural or hypothetical.”

Thus, the Court's recent decision is instructive both in interpretation and in reinforcing the standards of review. Understanding those standards is critical for attorneys and parties alike. The interpretation provides clarification on the interplay between access to medical information, responsibility for obtaining it, and the important protections of patient privacy that may be a counterbalance for those issues in some factual settings. Overall, the case is instructive and a recommended read for those involved in Florida workers' compensation. 


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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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