By Michael Rabinowitz


I can understand the facts of Morrow v. Sam's Club and why the First DCA ruled the way they did for that specific case.  But, I am worried that the decision can open up a can of worms for a host of issues outside a recommendation for a specialist.

In Morrow, claimant suffered a workers' comp accident that the Employer/Carrier (E/C) accepted as compensable.  The E/C authorized initial care with a primary care provider (PCP) who was unable to determine an objective basis for claimant's pain complaints. The treater eventually recommended claimant see an orthopedic specialist to determine whether there is any objective relevant medical evidence. As many of you know, section 440.09(1) does not recognize subjective pain complaints:


The E/C argued this statute applied and that claimant  was not entitled to the orthopedic evaluation. The judge of compensation claims (JCC) agreed, but the First DCA reversed and found that the wrong section applied.  Instead, the JCC should have applied section 440.13(2)(a); the medical necessity provision.  The court found that the PCP needed the ortho eval to determine what the major contributing cause was of claimant's pain complaints.  While I agree with the analysis so far, I wholeheartedly disagree with this ruling:

By its plain meaning, this language [section 440.09] applies to compensability of "pain or other subjective complaints."

And thus inviting a slew of litigation because the court just muddied the crystal clear waters of s. 440.09.  The coverage provision of 440 has plain meaning that the "objective relevant medical evidence" standard is to be applied to all forms of benefits, hence the preamble which states, "the employer must pay compensation or furnish benefits" and "the injury, its occupational cause, and any resulting manifestations or disability must be established to a reasonable degree of medical certainty, based on objective relevant medical findings."

This means (the way I read it) the E/C can dispute individual medical benefits or disability even for a compensable claim.  For example, a claimant has a legitimate slip and fall at work and injures his low back.  If claimant begins to have pain complaints in his hands, without any objective relevant medical findings to support that his hand pain is related to the compensable accident, the E/C should not have to pay for treatment or subsequent disability for the hand pain.

The First DCA, with Morrow, is saying "no, section 440.09 only applies to the original determination of compensability."  If the E/C already accepted the claim they cannot use s. 440.09 to parcel out compensability.  Now, I maybe overreacting to this case, but at the very least the decision invites litigation since claimant attorneys will be more aggressive when E/C's apply this statute.

A workers' comp claim is more than just the initial picking up of the claim. Along the way of treatment, there are numerous possibilities of how the claim will go. Just because an E/C picks up a claim initially should not preclude it from denying tangential treatment or disabilities that are unrelated to the original accident and injury.

Once again, I advise employers and carriers to lock down what specific injuries claimant reports via the initial incident report. A recorded statement is ideal since it locks down the exact disability you are dealing with. This is the best way to avoid having to deal with non-related disabilities should claimant  assert them without any objective relevant medical evidence.


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Michael G. Rabinowitz is an an attorney at Banker Lopez Gassler in Tampa, Fla. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com/
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