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Florida Hindrance to Recovery Doctrine

Florida
March 13, 2019
April 4, 2019
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The Florida Hindrance to Recovery doctrine entitles an injured employee to receive medical benefits for pre-existing conditions, if the treatment will aid or improve recovery.  This doctrine arises out of Florida Statute Section 440.13(2)(a), which requires an employer/carrier to:

[F]urnish to the employee such medically necessary remedial treatment, care, and attendance  for such period as the nature of the injury or the process of recovery may require, which is in accordance with established parameters and protocols of treatment.

The employer/carrier is responsible if one of the primary purposes of the treatment is also removal of a hindrance to recover from the compensable accident. See Glades County Sugar Growers v. Gonzales, 388 So.2d 333 (Fla. 1st DCA 1980). The employer/carrier is not required to supply such treatment indefinitely or in the absence of claimant’s voluntary cooperation; the employer/carrier is only required to supply said treatment for a reasonable period of time, at an attempt to achieve desired results. See Verdi’s Italian Restaurant v. Campanella, 423 So.2d 582 (Fla. 1st DCA 1982).

Under the Florida Hindrance to Recovery doctrine, it is the purpose of the treatment that determines compensability. See Brevard County School Board v. Acosta, 141 So.3d 233 (Fla. 1st DCA 2014.)  This doctrine makes treatment or assistance compensable only to the extent that treatment or assistance is necessary for the compensable injuries, not generally to keep a claimant healthy and safe. See Tyson v. Palm Beach County School Board, 913 So.2d 105 (Fla. 1st DCA 2005.)   The Judge of Compensation Claims will determine whether compensability of the hindrance meets the legal standard of reasonable medical necessity, not those that are the “personal preference of the medical witness.” See Timothy Bowser Construction v. Kowalski, 605 So.2d 885 (Fla. 1st DCA 1992.)

Examples of hindrances that the employer/carrier may be responsible for supplying medical treatment for a reasonable period of time, per Judges of Compensation Claims:

Provision of a weight loss program, in order to help relieve pain from the industrial accident

Pre-operative clearance due to high blood pressure or some other heart condition, in order to undergo surgery for the compensable injury

Provision of medical treatment for diabetes

Right total knee replacement (despite pre-existing knee issues) in order to correct the claimant’s  right ankle injury because her right knee was causing gait issues and improper alignment of her leg.

In Brevard County School Board v. Acosta, 141 So.3d 233 (Fla 1st DCA 2014,) the Florida 1st DCA held the claimant’s left shoulder condition was not a hindrance to her recovery from her right shoulder condition.  She sought surgical repair of her left shoulder as the authorized treating physician opined “that the result from the (non-compensable) left shoulder repair (would) be better if the left shoulder (was) performed first, although the ultimate result from the (compensable) right shoulder repair (would) be unaffected by the order of the surgeries.” Id.  The Florida 1st DCA determined that “the relevant inquiry is not whether the left shoulder surgery is medically necessary, but rather why is it medically necessary—i.e., what is the purpose of the left shoulder surgery?  Unless the purpose is to remove a hindrance to treating the compensable right shoulder injury, the doctrine does not apply.”  

However, in Sears Outlet v. Brown, Fl. 1st DCA 152 So.3d 785 (Fla. 1st DCA 2014,) the Florida 1st DCA held that the employer/carrier was not responsible for covering a hindrance (removal of a right kidney mass suspicious for renal cancer) solely because the claimant had the procedure performed at an unauthorized hospital and later requested reimbursement from the employer/carrier.  The claimant argued that the renal mass/cancer was a hindrance to his recovery from a lumbar injury.  The Florida 1st DCA held that with regard to hindrances, Section 440.13(2)(c) still applies in that “[t]here must be a specific request for the initial treatment or care, and the employer or carrier must be given a reasonable time period within which to provide the initial treatment or care,” before a claimant is entitled to recover any amount expended for initial treatment or care.” Id. citing Parodiv. Fla. Contracting Co., 16 So.3d 958, 962 (Fla. 1st DCA 2009.)

When reviewing a case involving a hindrance, ask yourself the following first:

Has an authorized treating physician opined that the recommended medical treatment is medically necessary to remove the hindrance in order to treat the workers’ compensation injury?

Has there been a specific request for the initial treatment or care by the authorized treating physician and were you given a reasonable time period to provide this?  

Have I confirmed with the authorized treating physician what he/she deems is a reasonable period of time to achieve the desired results in providing medical treatment for the hindrance, ex. with the instances involving weight loss and diabetes hindrances?