DYNAIR SERVICES, INC. AND THE INSURANCE COMPANY FOR THE STATE OF PENNSYLVANIA, APPELLANTS-CROSS-APPELLEES,
v.
ADUIS L'HERISSON, APPELLEE-CROSS-APPELLANT
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In a workers' compensation appeal, the Florida District Court of Appeal reversed the judge of compensation claims' decision to include the employer's medicare contributions in the claimant's average weekly wage and to hold the employer liable for chiropractic care beyond 18 treatments. The court affirmed the decision regarding the effective date of chiropractic treatment responsibility.
The court reversed the inclusion of medicare contributions in the average weekly wage calculation based on Curry Industries v. Maringer precedent. The court reversed the holding that the employer/carrier was responsible for chiropractic care beyond 18 treatments, finding that the statutory limitations of section 440.13(2)(a) apply unless the carrier authorizes additional treatment or the employee is catastrophically injured. The court affirmed the finding that the employer/carrier should be responsible for chiropractic bills beginning July 18, 1994.
[1] An employer's contributions to an employee's Medicare benefits are not included in the calculation of the employee's average weekly wage.
[2] Unless authorized by the carrier or the employee is catastrophically injured, chiropractic services are limited to eighteen treatments or eight weeks from the initial tre…
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Join FLexlaw to unlock all legal intelligence“The judge of compensation claims (JCC) erred in including in the claimant's average weekly wage (AWW) the employer's contributions to the claimant's medicare benefits.”
Establishes the primary error regarding calculation of average weekly wage by incorrectly including employer medicare contributions.
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Join FLexlaw to unlock all legal intelligenceAduis L'Herisson filed a workers' compensation claim against his employer Dynair Services and its carrier, The Insurance Company for the State of Penn…
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PER CURIAM.
The judge of compensation claims (JCC) erred in including in the claimant’s average weekly wage (AWW) the employer’s contributions to the claimant’s medicare benefits. Curry Industries v. Maringer, Case No. 96-2119, — So. 2d — (Fla. 1st DCA Feb. 14, 1997). Accordingly, we reverse that portion of the order which included in the claimant’s AWW his medicare contributions as fringe benefits.
We reverse as well that portion of the order which purportedly holds the employer/carrier (E/C) responsible for chiropractic care in excess of eighteen visits. Section 440.13(2)(a), Florida Statutes (Supp. 1994), requires the employer to furnish medically necessary treatment but provides that “[mjedically necessary treatment, care, and attendance does not include chiropractic services in excess of 18 treatments or rendered 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 reject the claimant’s argument that the JCC may award payment for unlimited chiropractic treatment unless the E/C raises the statutory limitation as a defense. The carrier did not authorize additional treatment beyond eighteen treatments and the claimant did not attempt to prove he was catastrophically injured. In the absence of a finding that one of the two statutory exceptions existed, the JCC erred in holding the E/C responsible for chiropractic care in excess of eighteen visits.*
We reject the argument raised by the claimant on cross-appeal. The finding that the E/C should be responsible for payment of the chiropractor’s bills beginning July 18, 1994, rather than from the date the claimant first began treating with the chiropractor, is supported by competent, substantial evidence.
AFFIRMED in part, and REVERSED in part.
BARFIELD, C.J., and DAVIS and BENTON, JJ., concur. *
Although the record indicates that the JCC clearly intended to hold the E/C responsible for all chiropractic care subsequent to July 18, 1994, we note that the language of the order may be interpreted to comply with section 440.13(2)(a), Florida Statutes (Supp. 1994). The JCC found the carrier responsible "for the reasonable and necessary chiropractic care" beginning July 18, 1994. The statute clearly defines reasonable and necessary chiropractic care as a maximum of eighteen treatments, unless one of two exceptions is found to apply. In the decretal portion of the order, the JCC ordered the E/C to pay the bill of the chiropractor "in accordance with the medical fee schedule.” The 1991 Florida Workers' Compensation Health Care Provider Reimbursement Manual definition of "medically necessary" emphasizes the statutory limitation for chiropractic treatment.