DENNIS RUSSELL, APPELLANT,
v.
P.I.E. NATIONWIDE AND ALEXSIS, INC., APPELLEES
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A workers' compensation claimant injured in 1989 appealed an order allowing the employer/carrier to deny further chiropractic care under a 1994 statutory amendment capping chiropractic treatments. The court reversed, holding that the statutory provision is substantive and cannot be applied retroactively to accidents occurring before its effective date.
The statutory provision is substantive in nature and therefore cannot be applied retroactively to cases in which the industrial accident occurred prior to its effective date.
[1] Substantive statutory provisions cannot be applied retroactively to cases in which the industrial accident occurred prior to the provision's effective date.
[2] A statutory amendment that limits the number of hours of care for which a family member may be paid does not affect a claimant's substantive right to receive necessary at…
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Join FLexlaw to unlock all legal intelligence“Medically necessary treatment, care, and attendance does not include chiropractic services in excess of 18 treatments or rendered for more than 8 weeks beyond the date of the initial chiropractic treatment, whichever comes first, unless the carrier authorizes additional treatment or the employee is catastrophically injured.”
The statutory provision at issue that the court held could not be applied retroactively
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Join FLexlaw to unlock all legal intelligenceDennis Russell suffered a work-related back injury in 1989. The employer/carrier sought to deauthorize further chiropractic care under section 440.13(…
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BARFIELD, Judge.
The claimant, who injured his back in a work-related accident in 1989, appeals a workers’ compensation order allowing the employer/carrier to “deauthorize” further chiropractic care, contending that the judge of compensation claims erred in retroactively applying the following provision of section 440.13(2)(a), Florida Statutes (Supp.1994):
Medically necessary treatment, care, and attendance does not include chiropractic services in excess of 18 treatments or rendered for more than 8 weeks beyond the date of the initial chiropractic treatment, whichever comes first, unless the carrier authorizes additional treatment or the employee is catastrophically injured.
We hold that this provision is substantive in nature and therefore cannot be applied retroactively in a case in which the industrial accident occurred prior to its effective date, see Southern Bakeries v. Cooper, 659 So. 2d 339 (Fla. 1st DCA 1995).1
The order is REVERSED and claimant’s motion for appellate attorney fees is GRANTED. This case is REMANDED to the judge of compensation claims for determination of the amount of the appellate attorney fee.
KAHN, J., and SMITH, Senior Judge, concur. . Mr. C's T.V. Rental v. Murray, 559 So. 2d 452 (Fla. 1st DCA 1990), cited by appellee, is distinguishable from this case because it involved the 1989 amendment to section 440.13(2)(e)2, which establishes the value of nonprofessional attendant care provided by a family member who leaves his or her employment to care for the injured employee as the per hour value of the family member’s former employment, not to exceed the per hour value of nonprofessional attendant care available in the community at large. The 1989 amendment added the following sentence: "In no event shall a family member providing non-professional attendant or custodial care pursuant to this paragraph be compensated for more than 12 hours per day." This court ruled that the amendment did not affect substantive rights: "The 1989 amendment limits the number of hours of care for which claimant's wife may be paid but does not affect or in any way limit claimant's right to receive 24-hour-per-day attendant or custodial care shown to be required.” Unlike nonprofessional attendant care, which can be provided by family members or by other untrained persons, chiropractic care cannot necessarily be provided by other than a licensed chiropractor.
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Butler v. BAY Center/CHUBB Ins. Co., 947 So. 2d 570 (Fla. 1st DCA 2006)…ribes the procedure for authorizing medical providers.” Op. at 572. This court, however, has generally viewed a workers’ compensation claimant’s entitlement to medical services as substantive, not procedural. See, e.g., Russell v. P.I.E. Nationwide, 668 So. 2d 696, 697 (Fla. 1st DCA 1996); S. Bakeries v. Cooper, 659 So. 2d 339, 340 (Fla. 1st DCA 1995); Gonzalez v. Publix, 654 So. 2d 634, 634 (Fla. 1st DCA 1995). We have described as procedural, those changes “which merely affect the method of proof....” S. Ba…
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Reynolds v. CSR Rinker Transp., 31 So. 3d 268 (Fla. 1st DCA 2010)…rd of review is de novo. See e.g., Gilbreth v. Genesis Eldercare, 821 So. 2d 1226, 1228 (Fla. 1st DCA 2002). The statute in effect on a claimant’s date of injury controls the substantive rights of the parties, see e.g., Russell v. P.I.E. Nationwide, 668 So. 2d 696, 697 (Fla. 1st DCA 1996) (holding substantive statutes cannot be applied retroactively); therefore, the 2000 [*270] version of the owner-operator statute controls the disposition of this case.* Section 440.02(14)(d)4., Florida Statutes, provides th…
Authorities Cited
- MR. C's TV Rental & Liberty Mut. Ins. v. Murray, 559 So. 2d 452 (Fla. 1st DCA 1990)
- S. Bakeries & Kemper Grp. v. Corwin Cooper, 659 So. 2d 339 (Fla. 1st DCA 1995)