“Only those who will risk going too far can possibly find out how
far one can go” - T.S. Eliot
Must we go too far to discover just how far we can go…… Pushing
the envelope… challenging limits of our abilities…..ultimately
can make us stronger and better. However, there is always a risk of failure.
For those of us who navigate through the often murky waters of Florida’s
worker’s compensation system, we often look for the logical and
reasonable to help us make risk adverse decisions to the best interests
of our clients.
In the context of workers’ compensation, unfortunately, there is
no clear-cut rule to determine whether the geographical location of a
new authorized medical provider is acceptable based on time and distance,
i.e. not too far. Chapter 440, case law, or the administrative rules do
not reference any express limitation on travel time to authorized medical
Rather, the only rule pertaining to such a limitation stems applies to
the context of managed care. 59-A-24.003(6), F.A.C., indicates that the
“average travel time” for treatment with a primary care provider
or at a hospital shall be no more than 30 minutes and the “average
travel time” associated with specialty physician services shall
be no more than 60 minutes under “normal circumstances”.
Many judges of compensation claims look to this administrative rule governing
managed care cases for guidance in determining whether the required travel
to a physician is reasonable and appropriate. However, existing case law
and even recent JCC decisions do not provide any clear consensus as to
how to determinate whether the required travel is reasonable and, thus,
In reviewing the following recent JCC decisions, the local courts have
considered a myriad of criteria in determining the geographical reasonableness
of driving distances, seemingly based on a “totality of the circumstances” approach.
Manuel Sanchez v. American Airlines and Sedgwick CMS, OJCC#: 16-029714,
Miami District, October 4, 2017:
The E/C authorized an orthopedic for the wrist in Doral, FL and an orthopedic
for the back in Hollywood. The claimant did want to drive to Hollywood,
FL as he felt it would take him 1.5 to 2.0 hours. The E/C offered to provide
the claimant with transportation although the claimant was not subject
to any driving restrictions. The JCC felt that the E/C met its burden
of proving the authorized treatment was medically necessary. As such,
the burden shifted back to the claimant to establish that there was more
competent orthopedic care available which was closer to his home.
In sum, the JCC felt that the claimant did not present enough evidence
that the required travel was unreasonable or unnecessary. The JCC considered
factors such as the distance involved, whether the claimant had to travel
to and from work, the length of time of the commute, the injured body
part, namely how the travel time affects the injured body part, as well
as any restrictions on driving. The JCC denied the claimant’s request
for an alternative orthopedic closer to home.
David Lowry v. ADH Plumbing and Amerisure Insurance, OJCC#15-029296, West
Palm Beach District, November 22, 2017:
The claimant lived in Delray Beach, worked in Boyton Beach (Palm Beach
County), and drove a company vehicle while on the job. The E/C authorized
a podiatrist in Plantation (Broward County) which was about 60 minutes
from the claimant’s place of employment. The claimant alleged this
physician was too far.
In making a determination that the selected doctor in Planation was unreasonable,
the JCC considered a totality of the circumstances and the following factors:
the injured worker did not have any driving restrictions, that there was
an expectation of follow up care versus a one-time evaluation, and, most
importantly, that the claimant was the sole provider for his family so
that missed time would cause a hardship.
The JCC found that the most critical factor is determining reasonableness
was the hardship imposed on the claimant. He would have had to drive to
another county in the opposite direction of his home to work route. The
court felt that the selection of this physician did not adhere to the
legislative intent of 440.015, Fla. Stat. to “assure the quick and
efficient delivery of… medical benefits to an injured worker and
to facilitate the workers’ return to gainful employment”.
Bladimir Abreu v. Southeast Personnel Leasing and Packard Claims, OJCC#17-006434,
Miami District, January 23, 2017:
The E/C authorized a new physician in Broward County, although the claimant
lived in Miami-Dade County. The new physician was 35 miles from the claimant’s
residence. The claimant argued that the travel time was excessive and
caused him to lose time from work. Here the JCC concluded that he did
not have the authority to grant a new physician based solely on allegations
of an inconvenience. As such, the E/C’s selection of the new physician
was deemed reasonable.
Carlos Font v. American Airlines and Sedgwick CMS, OJCC#13-012793, Melbourne
District, November 20, 2017:
The E/C authorized a new physician who had an office in Aventura open 2
days a week. This physician’s office was located 36 miles from home.
The claimant did not have any restrictions on driving but testified to
increased symptoms to his low back when driving long distances. The claimant’s
employer did not allow him to miss work for doctor’s appointments
and therefore the court measured distance from his residence as opposed
to from his place of employment.
The JCC noted that if the claimant establishes that the amount of travel
time associated with the new physician is unreasonable, the burden shifts
to the E/C to prove that the authorized treatment is medically necessary.
The JCC opined that the E/C could use any method to select a physician
as long it did not cause an unreasonable burden unto the claimant due
to time or distance or cause discomfort in making the trip. Here, the
claimant presented objective medical findings involving his low back.
Here, the E/C/SA did not provide evidence as to the necessity or reasonableness
of their selection. As such, the selected physician was held to be unreasonable.
Of note, these decisions do not pertain to authorization of all physicians,
such as an IME. The 1st DCA held in
Miller v. Jupiter Medical Group, 928 So.2d 485 (Fla. 1st DCA 2006) that there is no limitation as per Section 440.13(5), Fla. Stat.
regarding the geographical location of an IME (noting there is no limitation
in the statute but rather a reasonableness requirement subject to the
discretion of the JCC”). Furthermore, the JCC has no authority to
actually transfer care to another physician but rather only to determine
the reasonableness of the chosen physician.
As per existing case law, the 1st DCA considered the following factors
in determining whether the travel time associated with authorized medical
treatment was reasonable: evidence of painful conditions impacting the
ability to travel extended distances and a lack of evidence showing that
the authorized treatment is medically necessary. See,
Commercial Carrier Corp. v. Fox, 400 So.2d 154 (Fla. 1st DCA 1981); Wright v. Golf Drive Residence, 412 So.2d 884 (Fla. 1st DCA 1982); and
Kessler v. Community Blood Bank, 621 So.2d 539 (Fla. 1st DCA 1993).
In sum, while there is no set law or rule governing the method on which
to determine if driving distances to authorized medical providers are
reasonable, the more recent JCC decisions and existing case law suggest
that the following factors should be taken into consideration:
-actual distance and estimated driving time to/from the claimant’s
residence, which should generally average less than an hour;
-whether the geographical location would negatively impact the ability
to obtain suitable and necessary medical care;
-whether the claimant is subject to any driving restrictions or whether
the claimant has difficulty with driving due to the subject work injury;
-offers of transportation from the E/C to the authorized physician’s office;
-whether the compensable injury or body part has affected the claimant’s
ability to travel extended distances;
-the amount of follow up treatment and medical services anticipated by
the authorized medical provider;
-whether the associated travel will cause a significant impact on the claimant’s
ability to work and earn wages; and
-the unavailability of similar medical services within the reasonable proximity
of the claimant’s residence.
Without any such precise formula to assist in determining the reasonableness
of driving distances and travel time, one can only hope that a consideration
of a totality of the circumstances and facts as noted above will ultimately
serve the best interests of a self-executing worker’s compensation
system and prevent unfavorable rulings against employer/carriers, such
as a finding of an unjustifiable refusal of authorized medical care and