440.13 - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. // Chwa Medikal Limite nan Ka Konpansasyon Travayè Florid yo

Jeffrey P. Gale, P.A. — Mon, 05 Jan 2026 20:35:19 GMT

Lwa Florid § 440.13 gouvène dispozisyon swen medikal anba sistèm konpansasyon travayè Florid la. Anjeneral, anplwayè a ak konpayi asirans li a (kolektivman, “E/C”) egzèse yon kontwòl sibstansyèl sou swen medikal yon travayè blese.

Manifestasyon ki pi enpòtan nan kontwòl sa a se dwa legal E/C a pou chwazi doktè otorize pou trete moun ki fè reklamasyon an. An pratik, dinamik sa a souvan lakòz opinyon medikal ki aliyen ak enterè E/C a, souvan nan detriman travayè blese a. Piske doktè sa yo depann sou referans konpayi asirans pou yon gwo pòsyon nan pratik yo, opinyon yo ka—konsyaman oswa otreman—reflete reyalite ekonomik sa a.

Sepandan, nan kèk okazyon limite, doktè ijans lan pèdi kontwòl swen medikal la tanporèman. Senaryo ki pi komen an rive lè moun k ap fè reklamasyon an sibi blesi grav ki mande entène lopital ak operasyon dijans. Nan ka sa yo, chirijyen k ap bay tretman an—sitou yon moun ki gen yon pratik prive—souvan kontinye kòm doktè prensipal la apre moun k ap fè reklamasyon an kite lopital la. Pandan ke doktè sa a pa chwazi pa doktè moun k ap fè reklamasyon an, doktè moun k ap fè reklamasyon an pa chwazi non plis. Malgre sa, kontwòl inisyal doktè ijans lan sou seleksyon doktè a deranje.

Seksyon 440.13(2)(c) nan Lwa Florid yo bay E/C a yon “peryòd tan rezonab” pou bay premye tretman ak swen medikal. Si E/C a pa fè sa, moun k ap fè reklamasyon an “ka jwenn premye tretman sa a sou kont anplwayè a”. Menm lè sa a, sepandan, lwa a pèmèt E/C a reprann kontwòl swen medikal la pita.

Prensip sa a te ilistre nan ka Carmack kont Eta Florid, Depatman Agrikilti, 31 So. 3d 798 (Fla. 1st DCA 2009). La, moun ki te fè reklamasyon an te soufri yon aksidan ki ka resevwa konpansasyon, men Tribinal E/C a te refize otorize tretman sikyatrik ki soti nan blesi fizik nan janm ak nan do moun ki te fè reklamasyon an. Moun ki te fè reklamasyon an te chèche tretman ak yon sikyat poukont li epi li te depoze yon Petisyon pou Benefis pou mande otorizasyon swen nan tan lontan ak nan lavni ak doktè sa a. Jij Reklamasyon Konpansasyon an te bay lòd pou Tribinal E/C a peye pou tretman an jiska dat dènye odyans lan, men li te refize otorize swen kontinyèl ak sikyat moun ki te fè reklamasyon an te chwazi a. Okontrè, yo te pèmèt Tribinal E/C a chwazi yon lòt sikyat. Tribinal Apèl Premye Distri a te konfime sa, sa ki te ranfòse kapasite Tribinal E/C a pou reprann kontwòl sou swen medikal la menm apre yon premye echèk pou otorize tretman.

Seksyon 440.13(2)(f) nan Lwa Florid yo bay sa ki souvan sèl opòtinite enpòtan pou yon moun k ap fè reklamasyon chwazi yon doktè ki pral rete otorize pou lavni. Sepandan, opòtinite sa a rive sèlman lè E/C a komèt yon erè legal. Pati ki enpòtan nan lwa a bay:

Sou demann alekri anplwaye a, konpayi asirans lan dwe bay anplwaye a opòtinite pou chanje doktè yon fwa pandan tretman an pou nenpòt aksidan… Konpayi asirans lan dwe otorize yon lòt doktè ki pa dwe afilye pwofesyonèlman ak ansyen doktè a nan lespas 5 jou apre li fin resevwa demann lan. Si konpayi asirans lan pa bay yon chanjman doktè jan anplwaye a mande a, anplwaye a ka chwazi doktè a epi doktè sa a dwe konsidere kòm otorize si tretman y ap bay la konpanse epi li nesesè medikalman.

Nan ka Zekanovic kont American II, Corp., 208 So. 3d 851 (Fla. 1st DCA 2017), Distri a pa t reponn nan senk jou a demann alekri moun ki te fè reklamasyon an pou yon chanjman doktè yon sèl fwa anba seksyon 440.13(2)(f). Moun ki te fè reklamasyon an te depoze yon Petisyon pou Benefis apre sa pou mande otorizasyon yon doktè espesifik kòm chanjman yon sèl fwa li. Malgre ke JCC a te jwenn ke moun ki te fè reklamasyon an te gen dwa pou chanjman yon sèl fwa a, JCC a te konkli ke paske moun ki te fè reklamasyon an pa t ko jwenn tretman ak doktè li te mande a anvan yo te pase lòd la, Distri a te kenbe dwa pou chwazi doktè ranplasman an. Nan apèl la, Premye Distri a te ranvèse desizyon an, li te deside ke echèk Distri a pou reponn alè te fè li pèdi dwa li pou chwazi doktè a, epi ke moun ki te fè reklamasyon an te gen dwa pou trete ak doktè li te chwazi a.

Nan pratik nou an, nou regilyèman mande chanjman doktè yon sèl fwa. Etandone konsekans enpòtan yon repons ki pa alè—anpalan de pèt kontwòl medikal—E/C a prèske toujou konfòme li nan senk jou legal la epi li kenbe dwa pou chwazi doktè ranplasman an. Ka kote E/C a pa reponn alè yo ra anpil. Sepandan, nan ka sa a, yon echèk konsa te rive. Li enpòtan pou note ke neglijans lan sanble akòz avoka opozan an olye ke ajistè a. Nan enterè pwofesyonalis, nou te ofri pou travay an kolaborasyon ak avoka a pou idantifye yon lòt doktè ki akseptab pou tou de pati yo. Diskisyon sa yo jiskaprezan pa reyisi, paske nou pa vle dakò ak youn nan doktè karyè yo chwazi regilyèman. Antretan, moun ki fè reklamasyon an pwograme pou trete ak doktè li te chwazi a pita nan mwa sa a. Avoka opozan an konprann ke si pa gen yon akò sou yon lòt doktè anvan randevou sa a, E/C a ap oblije otorize tretman ak doktè moun ki fè reklamasyon an chwazi a dapre seksyon 440.13(2)(f).

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Kontakte nou nan 305-758-4900 oubyen pa imèl pou w konnen dwa legal ou yo.

Jeffrey P. Gale, P.A. se yon kabinè avoka ki baze nan Sid Florid ki angaje nan sistèm jidisyè a epi pou reprezante epi jwenn jistis pou moun – pòv yo, moun ki blese yo, moun ki bliye yo, moun ki pa gen vwa yo, moun ki san defans yo ak moun ki kondane yo, epi pou pwoteje dwa moun sa yo kont opresyon kòporasyon ak gouvènman an. Nou pa reprezante gouvènman, kòporasyon oswa gwo enterè biznis yo.

Pandan ke rezolisyon rapid nan pwoblèm legal ou a se objektif nou, apwòch nou an fondamantalman diferan. Kliyan nou yo se “moun” epi yo pa “ka” oswa “dosye”. Nou pran tan pou nou bati yon relasyon ak kliyan nou yo, nou reyalize ke se sèlman atravè yon entèraksyon ki gen sans nou ka pi byen sèvi bezwen yo. Nan fason sa a, nou te kapab pi byen ede moun ki bezwen reprezantasyon legal.

AVÈTISMAN: Enfòmasyon sa a ki bay pa Jeffrey P. Gale, P.A. se pou rezon enfòmasyon sèlman epi li fèt pou itilize kòm yon gid ki pa legal anvan konsiltasyon ak yon avoka ki abitye ak sitiyasyon legal espesifik ou a. Li pa ta dwe konsidere kòm konsèy legal oswa konsèy. Pa gen okenn entansyon pou bay konsèy legal oswa konsèy sa yo, ni eksplisitman ni enplisitman. Enfòmasyon sa a pa ranplase konsèy oswa konsèy yon avoka. Si ou bezwen konsèy legal, ou ta dwe chèche sèvis yon avoka.

Jeffrey P. Gale, P.A. /// Debunking the “Prescription Doctrine” in Florida Workers’ Compensation

Jeffrey P. Gale, P.A. — Sat, 07 Jun 2025 13:28:07 GMT

The belief that a physician’s written prescription must accompany every petition for benefits requesting medical care has taken on the status of religious doctrine in Florida workers’ compensation practice. This blog aims to challenge and clarify that misconception.

A petition for benefits is the workers’ compensation equivalent of a civil complaint. It is the legal vehicle used to initiate litigation against the employer and its insurance carrier (E/C).

Section 440.192, Florida Statutes, outlines the required contents of every petition, its purpose being to equip E/C with sufficient information to make informed decisions.

The so-called prescription doctrine finds its supposed legal foundation in Section 440.192(2)(i), which states:

“The type or nature of treatment, care, or attendance sought and the justification for such treatment. If the employee is under the care of a physician for an injury identified under paragraph (c), a copy of the physician’s request, authorization, or recommendation for treatment, care, or attendance must accompany the petition.”

Many practitioners and judges interpret this subsection as requiring a physician’s written request with every petition seeking medical care. They view the two sentences as linked and dependent. As a result, E/C routinely files motions to dismiss petitions that lack a doctor’s written request.

I respectfully disagree with this widely accepted interpretation.

In my view, each sentence of 440.192(2)(i) applies independently to different scenarios. They are not intertwined.

Florida Statutes Section 440.13(2) sets forth the E/C’s duty to provide necessary medical treatment. Authorized physicians routinely recommend services such as physical therapy, diagnostic studies, and specialist referrals. In such cases, the second sentence of 440.192(2)(i) applies—but only when the petition relies on a physician’s written request for that treatment. (Notably, this request may not be limited to authorized physicians.)

However, the statute does not state that a physician’s request must always accompany a claim for medical benefits.

The second sentence simply instructs that if there is a written request, include it. This makes sense—if a written recommendation exists, attaching it facilitates an informed response from the E/C. Nothing more.

Conversely, the first sentence of 440.192(2)(i) outlines what is required when the request for treatment does not stem from a physician’s prescription. In those cases, the claimant must state the “type or nature” of the requested care and provide a justification. The aim remains the same: to allow the E/C to assess the claim.

This interpretation finds support in Burdick v. Bob’s Space Racers, 659 So. 2d 351 (Fla. 1st DCA 1995). In Burdick, the claimant filed a petition seeking chiropractic treatment. The Judge of Compensation Claims (JCC) dismissed the petition, and the First District Court of Appeal affirmed the dismissal—not because it lacked a doctor’s request, but because it failed to meet the requirements of the first sentence of 440.192(2)(i). The second sentence was not even addressed, suggesting it was inapplicable to that claim.

In practice, a claimant may be unable to obtain a physician’s written request. This is especially true when the E/C authorizes treatment only for limited injuries, restricting providers from addressing other complaints. Some physicians, uncertain about their authority or unwilling to anger E/C, simply refrain from issuing prescriptions. In more extreme cases, the E/C refuses to authorize any treatment at all—making it impossible to obtain a prescription.

Such obstacles should not bar a claimant from seeking and securing medical care. The first sentence of 440.192(2)(i) exists precisely to address these circumstances.

Conclusion: The rigid insistence on a physician’s prescription with every petition for medical benefits misreads the statute. A more reasonable and legally supported interpretation recognizes the independence of the two sentences in 440.192(2)(i). This reading preserves both the claimant’s right to pursue care and the E/C’s ability to evaluate the request.

It’s time to retire the myth and restore clarity to the process.

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Contact us at 305-758-4900 or by email (kgale@jeffgalelaw.com and jgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. // Gamesmanship Practiced by Florida Workers’ Compensation Doctors

Jeffrey P. Gale, P.A. — Thu, 02 May 2024 18:57:16 GMT

Florida law authorizes employers and their workers’ compensation insurance carriers (“E/C”) to choose every one of an injured worker’s treating doctors. See, sections 440.13(2)(a) & (f), Florida Statutes. They pick medical providers, sometimes called “The Usual Suspects,” from whom they can expect to receive favorable opinions. Because the doctors like the steady and easy income, they play along. So much for honoring the Hippocratic Oath.

To receive workers’ compensation wage loss benefits, also known as indemnity benefits (see, sections 440.13(2)&(4), Florida Statutes), the burden is on the injured worker (a/k/a, Claimant) to establish a connection between the work-related injuries and any wage loss. In 2024, the weekly wage loss benefit can be as much as $1,260.

Medical providers authorized by the E/C are required to complete form DWC-25 after each appointment. Section IV of the form addresses the injured worker’s “Functional Limitations and Restrictions.” It contains three paragraphs (numbers 21, 22, and 23) for this purpose with corresponding boxes for the provider to check. Paragraph 21 indicates that the Claimant does not have any functional limitations. Paragraph 22 provides that the Claimant’s injuries are of such severity he cannot work. Paragraph 23 says that the Claimant can work with restrictions.

Without functional limitations, the Claimant cannot satisfy the burden of showing a connection between the injuries and the wage loss. This is what paragraph 21 accomplishes. Paragraphs 22 and 23 give Claimant a shot at indemnity benefits.

Unfortunately, E/C-selected medical providers commonly check box 21. It is done even when common sense dictates otherwise, such as when the doctor diagnoses a serious medical condition like post-concussion syndrome, herniated discs, or a torn rotator cuff, orders physical therapy, prescribes diagnostic tests (e.g., MRI and CT Scan), or administers epidural injections. What’s going on is that the doctor is managing to make money while saving E/C money.

There are ways to combat these tactics, but it takes time. The workers’ compensation courts are swamped with similar claims, and others, resulting in delays and hardship. It can take months to get contested issues before a judge of compensation claims (JCC).

There was a time when injured workers could select their treating doctors. This ended after the E/C complained to Republican legislators about not having enough influence over the medical providers. The result is the system we have now, handpicked providers who understand the rules for getting E/C referrals. The business model works against the best interests of injured workers.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Limited Medical Choices for Claimants in Florida Workers’ Compensation Cases

Jeffrey P. Gale, P.A. — Tue, 16 May 2023 18:05:33 GMT

Florida Statute 440.13 governs the provision of medical care under Florida’s workers’ compensation system. For the most part, the Employer and its insurance carrier — “E/C” — control the provision of medical care.

The most dominant aspect of this control is the right to select the injured worker’s treating doctors. Unfortunately, most of these doctors suffer from the incurable “Don’t Bite the Hand that Feeds You” disease. All too frequently, the opinions expressed by these doctors benefit the E/C to the detriment of the Claimant.

On rare occasions, E/C loses control of the medical. The most frequent situation is where the worker has suffered substantial injuries requiring emergency surgery in the hospital. The natural sequence is that the surgeon, especially if he or she maintains a private practice, will remain the primary physician after the patient is discharged from the hospital. While this doctor is not hand-picked by E/C, he or she is also not hand-picked by the Claimant.

440.13(2)(c) gives E/C a “reasonable time period” to provide initial medical treatment and care. If E/C fails to provide the initial treatment and care, Claimant “may obtain such initial treatment at the expense of the employer.” Even still, E/C can regain control of the medical under this provision. In Carmack v. Department of Agriculture, 31 So.3d 798 (Fla. 1st DCA 2009), Claimant suffered a compensable accident, but E/C refused to authorize medical care for psychiatric issues arising from leg and back injuries. Claimant sought care with a psychiatrist and filed a Petition for Benefits seeking authorization of past and future care with the psychiatrist. The Judge of Compensation Claims (JCC) ordered E/C to pay for treatment through the date of the final hearing (workers’ compensation trial), but not for continuing treatment with the particular doctor. Instead, E/C was able to choose another psychiatrist. The JCC’s ruling was upheld on appeal.

440.13(2)(f) may be the only true opportunity for the Claimant to select a doctor who will remain authorized in the future. Unfortunately, it takes a mistake by E/C for the opportunity to arise. The pertinent parts of this section read as follows:

Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident…. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.

In Zekanovic v. American II, Corp., 208 So.3d 851 (Fla. 1st DCA 2017), E/C failed to respond within five days to Claimant’s request under 440.13(2)(f) for a one-time change of physician. Claimant then filed a petition for benefits requesting authorization of a particular doctor as his one-time change. The JCC found that Claimant was entitled to his one-time change, but because Claimant had not actually obtained treatment with the physician of his choice prior to the entry of his ruling, the JCC found that E/C retained the right to choose Claimant’s one-time change. Claimant appealed and the First District Court of Appeal reversed the JCC’s ruling.

We request a one-time change of physician in many of our workers’ compensation cases. Knowing the consequence of failing to respond timely — losing control! — E/C rarely fails to respond timely. When it responds timely, it gets to select the one-time change doctor. I can count on the fingers of one hand the number of times E/C has failed to respond timely. Coincidentally, one of those times happened just recently. Interestingly, because the oversight was by a friendly lawyer rather than the disagreeable adjuster in the case, I have offered to work with the lawyer to select an alternative both of us can agree on. However, because I won’t agree to one of the usual suspects, we may not reach an agreement. In the meantime, my client is scheduled to see the doctor we helped her select at the end of the month. Opposing counsel understands that if we can’t agree on another doctor by then, E/C will have to authorize our doctor.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Peer Review in Florida Workers’ Compensation

Jeffrey P. Gale, P.A. — Tue, 08 Nov 2022 16:21:25 GMT

The Oxford Dictionary defines peer review as “a judgment on a piece of scientific or other professional work by others working in the same area.” It is a commonly used procedure with a variety of scientific and medical matters.

Florida’s workers’ compensation statutes are located in Chapter 440. Peer review is referenced at section 440.13(1)(o) as follows:

“Peer review” means an evaluation by two or more physicians licensed under the same authority and with the same or similar specialty as the physician under review, of the appropriateness, quality, and cost of health care and health services provided to a patient, based on medically accepted standards.

There is little other jurisprudential instruction to explain the pertinence of peer review in workers’ compensation cases.

Last week I received a “Peer Review” report from a doctor hired by the workers’ compensation insurance company in one of our cases. In the doctor’s opinion, a shoulder surgery recommended by our client’s authorized doctor “does not meet established treatment standards of medical necessity.” The peer review report was generated in response to a Petition for Benefits we had filed seeking authorization of the surgery. A few days later the workers’ compensation carrier filed a formal response to the Petition for Benefits in which it agreed to authorize the surgery. This is not the first time I’ve experienced a similar about-face involving peer review.

I don’t know why the carrier went to the trouble and expense of this so-called peer review. First, the statute requires the review to be done by “two or more physicians.” This review was done by one physician. Next, while 440.13(r) and (s) express an interest in “Utilization control” and “Utilization review,” neither the statute nor case law instruct how or even whether peer review functions to address utilization concerns or disputed medical benefits.

Peer review does not appear to fit into the scheme devised for resolving workers’ compensation disputes. Using our shoulder surgery case as an example, the carrier did not need a peer review opinion in order to contest the medical necessity of the procedure. Moreover, even an opinion complying with the statute — i.e., given by “two or more physicians” — would probably not be admissible in a court proceeding concerning whether the procedure will be authorized. For one thing, peer review opinions, which are employed as a tool in many different types of matters, are privileged and barred from use in legal proceedings. See Holly v. Auld, 450 So.2d 217 (Fla. 1984); South Broward Hospital District v. Feldbaum, 321 So.3d 828 (Fla. 4th DCA 2021); Lingle v. Dion, 776 So.2d 1073 (Fla. 4th DCA 2001); and Florida Statutes 766.101 and 395.0193. Second, section 440.13(5)(e) limits whose medical opinions may be considered by the judge of compensation claims (JCC):

No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.

Peer review does not qualify as one of these experts.

While 440.13(5)(e) would seemingly prohibit the actual peer review opinion from coming into evidence, Florida’s Evidence Code might allow the import of the opinion to get before the JCC. Florida statute 90.704 provides as follows:

Basis of opinion testimony by experts.—The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Under 90.704, the party wishing to make the peer review opinion known, if only by inference, will furnish the report to one or more of the experts authorized to testify under 440.13(5)(e). The expert will then be asked to name the things he or she relied on as the basis for the opinions. If the expert references the peer review opinion, the JCC will naturally infer that the peer review opinion resembles the testifying expert’s opinion. That could be a harmful inference.

The opponent of this procedure should object on the following grounds:

The peer review report is privileged and barred from use in all legal proceedings.
Referencing the peer review in this manner is a backdoor attempt, in violation of 440.13(5)(e), at putting the opinion before the court.
The peer review evidence is cumulative.

Since the JCC might rule that the testifying expert’s reliance on the peer review report was improper, it is important during cross-examination of that expert or the court-appointed EMA to establish how much reliance there was on the opinion. If there was meaningful reliance and the JCC later finds that using the peer review opinion was improper, the expert’s opinion has been significantly undercut. When it involves an EMA, this might be enough to overcome the presumption of correctness. See 440.13(9)(c)(“The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.”)

Another argument to make is that the peer review expert is really the party’s IME under 440.13(5)(e), and, therefore, no other IME for that party is allowed. In pertinent part, 440.13(5)(a), provides as follows:

The employer and employee shall be entitled to only one independent medical examination per accident and not one independent medical examination per medical specialty.

Locking the carrier into the peer review as its IME is a sound approach if the peer review is relatively weak and most likely less damaging than a dedicated IME opinion.

For the carrier to obtain an alternative IME, it must demonstrate at least one of these elements:

The examiner is not qualified to render an opinion upon an aspect of the employee’s illness or injury which is material to the claim or petition for benefits;
The examiner ceases to practice in the specialty relevant to the employee’s condition;
The examiner is unavailable due to injury, death, or relocation outside a reasonably accessible geographic area; or
The parties agree to an alternate examiner.

Section 440.13(5)(b), Florida Statutes While it is typically the workers’ compensation carriers who inject peer review into a case, nothing in Chapter 440 bars claimants from using the mechanism for what it’s worth.

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Contact us at 305-758-4900 or by email to learn your legal rights.