Jeffrey P. Gale, P.A. // Medical Expenses Incurred in Diagnosing the Nature and Cause of Non-Compensable Injuries Can be the Responsibility of Workers’ Compensation Insurance Carriers

We represent a woman who fell at work. The employer sent her to a clinic the same day for treatment. However, because of miscommunications between the employer and the clinic, she never got in to see a doctor despite waiting more than two hours. While in the waiting room, our client began experiencing stroke-like symptoms. She phoned her daughter to take her to the hospital. She was admitted to the hospital and underwent a series of tests mostly aimed at the stroke-like symptoms. She was discharged 24 hours after being admitted. The hospital bill was close to $100,000.

Our client injured her back and feet in the fall. She did not strike her head. The workers’ compensation insurance carrier has accepted responsibility for the orthopedic injuries. However, it is not considering paying the hospital bill. It may have to pay the bill.

It is well established in the case law that diagnostic testing is always compensable if the purpose is to find out the cause of the injured worker’s symptoms. See Arnau v. Winn Dixie Stores, 105 So.3d 669, 671 (Fla. 1st DCA 2013) citing Nealy v. City of W. Palm Beach, 491 So.2d 585, 586 (Fla. 1st DCA 1986) (“Whenever the purpose of the diagnostic test is to determine the cause of a claimant’s symptoms, which symptoms may be related to a compensable accident, the cost of the diagnostic test is compensable.”); see also Superior Concrete Constr. v. Olsen, 616 So.2d 183, 183 (Fla. 1st DCA 1993); Perry v. Ridgecrest Int’l, 548 So.2d 826, 827-28 (Fla. 1st DCA 1989). This is true even if the tests prove the symptoms are unrelated to the compensable injury. Nealy, 491 So.2d at 586.

The foundation for these principles is found in Florida statute 440.13. Under paragraph 440.13(2)(a), Florida Statutes (2023), employers are required to furnish “such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or process of recovery may require.” Medically necessary treatment includes “any medical service or medical supply which is used to identify or treat an illness or injury.” § 440.13(1)(k), Fla. Stat. (2023).

The case of Alvarez v. Fort Pierce Police Dept., 186 So. 3d 581 (Fla. 1st DCA 2016), bears some resemblance to our case. It can also be distinguished. A law enforcement officer in training, passed out and fell to the ground, striking his head on the concrete pavement. A brain CT scan was performed in the hospital emergency room. Acknowledging that Claimant’s head injury may have involved more than a simple laceration, the Employer/Carrier (E/C) agreed to pay for the initial CT. However, once the CT was read as indicative of a stroke, E/C decided that no further testing was required for the workplace injury. As a result, E/C denied responsibility for Claimant’s later hospitalization and additional diagnostic testing which was ordered based on the initial stroke diagnosis.

The law enforcement officer filed a workers’ compensation claim for the hospitalization and testing. Finding that the accident was not the major contributing cause (MCC) of the stroke, the Judge of Compensation Claims (JCC) ruled in E/C’s favor. The First DCA reversed, holding that the MCC analysis does not govern whether diagnostic testing to determine the cause of symptoms must be authorized. Instead, the standards for this determination are those set forth in the third paragraph of this blog. (The MCC standard was fashioned by the Florida Legislature to apply to dates of accident beginning January 1, 1994. MCC means “the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought.” See § 440.09(1)(k), Fla. Stat. (2023).)

For the reason that our client did not strike her head in the fall, our claim for payment of the hospital bill may be weaker than the Claimant’s position in the Alvarez case. Nevertheless, given the temporal relationship of the symptoms to the accident, we appear to have a shot under the Nealy standard: “Whenever the purpose of the diagnostic test is to determine the cause of a claimant’s symptoms, which symptoms may be related to a compensable accident, the cost of the diagnostic test is compensable.”

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