STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRED THOROGOOD, )

)

Petitioner, )

)

vs. ) Case No. 96-2740

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on July 15, 1998, at West Palm Beach, Florida, before Administrative Law Judge Michael M. Parrish, of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patrick J. Malone, Esquire

1080 East Indiantown Road, Suite 201

Jupiter, Florida 33477

For Respondent: Karel Baarslag, Esquire

Agency for Health Care Administration 2295 Victoria Avenue, Room 309

Fort Myers, Florida 33906 STATEMENT OF THE ISSUE

This is a proceeding pursuant to Section 440.13(1)(m), Florida Statutes, concerning a determination as to whether a specific surgical procedure is of an experimental, investigative, or research nature.

PRELIMINARY STATEMENT

This case had its genesis in a letter dated January 29, 1996, in which the attorney for the employer/carrier1 in a workers' compensation case involving Petitioner, Fred Thorogood, wrote to the Agency for Health Care Administration ("AHCA") and requested that the agency "review the above captioned matter and determine whether the proposed thoroscopic disc removal procedure recommended by Dr. Reuter is experimental, investigative, or of a research nature." The attorney for Mr. Thorogood objected to the request on several grounds, asserting that AHCA should not make the review requested by the employer/carrier. Without responding to the objections, AHCA conducted the requested review and, by means of a letter dated April 17, 1996, advised all concerned as follows:

This is to inform you that the review of your case has been completed. The reviewer has deemed the proposed procedure, an endoscopic thoracic discectomy, experimental in light of the injured worker's diagnosis. Thus, the procedure is not approved for coverage under the Florida Workers' Compensation Law.

By letter dated April 29, 1996, Mr. Thorogood's attorney requested an evidentiary hearing pursuant to Section 120.57, Florida Statutes. On June 4, 1996, AHCA referred the matter to the Division of Administrative Hearings, where it was received on June 7, 1996, and duly-assigned to an administrative law judge.

The case was originally scheduled for a final hearing to be held on October 23, 1996. On October 17, 1996, the parties filed a

Joint Motion for Continuance and to Hold Adjudication of Petition in Abeyance. The motion recited the following grounds:

1. There is still pending before the Judge of Compensation Claims substantially the same issue as to whether or not the Petitioner's request for an endoscopic thoracic discectomy surgery is investigational or experimental as defined in Chapter 440 of the Workers' Compensation Law of Florida. There was a trial hearing held before the Judge of Compensation Claims on that issue on

   February 7, 1996. Following that hearing the Judge of Compensation Claims allowed additional post hearing evidence to be taken, including additional medical evaluations of the Petitioner.

   
   

2. The Judge of Compensation Claims has not yet entered a final order in reference to the pending issues.

   
   

3. The parties desire to avoid any unnecessary additional litigation concerning the issue and have agreed to hold in abeyance the formal hearing scheduled for October 23, 1996, as well as all pending discovery requests, until a final decision is made by the Judge of Compensation Claims.

The motion was granted, and the case remained in abeyance for several months. On February 5, 1997, the case was rescheduled for a final hearing to be held on April 16, 1997. On April 11, 1997, the parties filed another motion seeking continuance and abeyance. The motion recited the following grounds:

1. An Order was entered by the Judge of Compensation Claims, Hon. Steven Cullen, on March 6, 1997 involving substantially these same issues as to whether or not the Petitioner's request for an endoscopic thoracic discectomy surgery is investigational or experimental as defined in

   Chapter 440 of the Workers' Compensation Law of Florida. After a rehearing motion was filed and determined by the Judge of Compensation Claims, the petitioner has filed a Notice of Appeal from the Order of the Judge of Compensation Claims, entered on March 6, 1997, to the First District Court of Appeal of the State of Florida. The Notice of Appeal was filed on April 7, 1997.

   
   

2. Since the Order of the Judge of Compensation Claims as reviewed by the first District Court of Appeal may finally determine the pending issue, it is requested that the hearing scheduled for April 16, 1997 be held in abeyance to avoid any unnecessary additional litigation concerning the issue.

The motion was granted and the case remained in abeyance for several more months. Status reports advised that the appeal was still pending in the First District Court of Appeal. Finally, on January 29, 1998, the final hearing in this case was rescheduled for July 15, 1998. At the appointed time and place, the Petitioner and AHCA appeared for the final hearing.2 Counsel for both parties presented opening statements. In the course of discussions following the opening statements, counsel for the Petitioner offered the following remarks:

MR. MALONE: May I add a comment? This is sort of a complicated legal hurdle that

Mr. Thorogood has been trying to jump over. The issue was tried before the Judge of Compensation Claims, he took into consideration and reviewed the deposition of Dr. Jacob, he also reviewed the Agency's decision that was made denying the surgery and based his decision on all the other evidence that was submitted to him and denied the request to have this surgery authorized on the grounds that it was investigative.

That decision was appealed and the First District Court of Appeals upheld the decision

by the Judge of Compensation Claims. It's our position that the Judge's decision in the Workers' Compensation case was tainted because he allowed into evidence the decision by the Agency for Health Care Administration, he allowed into evidence the deposition of Dr. Jacob that was taken only as a result of the request for the Agency review, and the Agency review was not timely.

One of the main reasons for pursuing this against the Agency and trying to reverse their decision is to leave open the door for Mr. Thorogood so he could come back and ask for modifications which he can do if the Judge's decision says the Agency's decisions has been reversed. We are asking the Judge to reconsider and make a new decision on whether or not the surgery should be authorized.

During the course of the final hearing, the Petitioner testified on his own behalf and also offered twelve exhibits, all of which were received in evidence. The Respondent presented the testimony of one witness and also offered one exhibit3 which was received in evidence.

At the conclusion of the hearing, the parties requested, and were granted, three weeks from the filing of the transcript within which to file their respective proposed recommended orders. The transcript was filed with the Division of Administrative Hearings on August 3, 1998. At the request of the parties, the deadline for filing proposed recommended orders was extended. The last of the proposed recommended orders was filed on September 22, 1998.

FINDINGS OF FACT4

1. As conceded by Petitioner's counsel in his opening remarks, the substantive issue in this case ("whether the proposed thoroscopic disc removal procedure recommended by Dr. Reuter is experimental, investigative, or of a research nature") has already been decided by a Judge of Compensation Claims in a proceeding to which the Petitioner and the employer/carrier were parties.

2. The decision of the Judge of Compensation Claims was adverse to the Petitioner. The Petitioner appealed that decision. The First District Court of Appeal affirmed the decision of the Judge of Compensation Claims.5

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57, Florida Statutes.

4. Judges of Compensation Claims are authorized to resolve conflicts in the evidence and determine whether proposed treatment of a workers' compensation claimant is "of an experimental, investigative, or research nature." With regard to the resolution of such an issue, in Kenney v. Juno Fire Control District #3, 576 So. 2d 905 (Fla. 1st DCA 1991), the Court noted:

   Certainly, it is the judge's clear function to determine the credibility of witnesses and resolve conflicts in the evidence, and he or she may properly accept the testimony of one physician over that of several others. Curry v. Miami Dolphins, Ltd., 522 So. 2d 1010

   (Fla. 1st DCA 1988). As competent and substantial evidence supports the judge's findings in this regard, we affirm.

   
   

5. The jurisdiction of Judges of Compensation Claims to decide such issues is not diminished by the pendency of review proceedings before the Agency for Health Care Administration. In School Board of Manatee County v. Chrisman, 678 So. 2d 498 (Fla. 1st DCA 1996), the Court concluded:

   The E/SA argue that the Judge of Compensation Claims lacked jurisdiction to authorize Dr. Rea to provide sauna biodetoxification therapy because they had submitted the matter to the Agency for Health Care Administration (AHCA) and AHCA's review was still pending at the time of the final hearing. Because section 440.13(1)(m), Florida Statutes (Supp. 1994), does not preclude the Judge of Compensation Claims from exercising jurisdiction to determine the medical necessity and the nonexperimental nature of a requested therapy when AHCA's review is pending, we affirm.

   * * *

   
   

   At the final hearing held on August 14, 1995, counsel for the E/SA argued that the Judge of Compensation Claims did not have jurisdiction to determine the authorization of Dr. Rea to provide sauna biodetoxification therapy because they had requested AHCA review and had not yet received a response.

   On September 7, 1995, concluding that the sauna biodetoxification therapy was not experimental and was reasonable and medically necessary, the Judge of Compensation Claims entered an order authorizing Dr. Rea to provide the sauna biodetoxification therapy.

   
   

   On September 7, 1995, AHCA sent a letter to the claimant and the E/SA, which disapproved the sauna biodetoxification treatment. On September 21, 1995, AHCA sent a letter to the parties deferring to the Judge of

   Compensation Claims' final order and advising that the Judge of Compensation Claims' final order entered on September 7, 1995, superseded its determination and rendered its previously issued determination moot.

   
   

   We hold that the Judge of Compensation Claims had jurisdiction to determine the medical necessity and the nonexperimental nature of the sauna biodetoxification therapy while AHCA's review was pending.

   
   

   * * *

   
   

   Once the claimant filed a petition for benefits requesting authorization of Dr. Rea to provide sauna biodetoxification therapy, and the medical necessity of that therapy was placed in issue before the Judge of Compensation Claims, the Judge of Compensation Claims was required to resolve the issue of the medical necessity of the requested therapy. See Williams v. Triple J. Enters, 650 So. 2d 1114, 1116 (Fla. 1st DCA 1995). In determining the medical necessity of the sauna biodetoxification therapy, it was necessary for the Judge of Compensation Claims to determine the experimental nature of the requested therapy. The only evidence presented before the Judge of Compensation Claims revealed that the sauna biodetoxification therapy was medically necessary and was not experimental. Because section 440.13(1)(m), Florida Statutes (Supp. 1994), did not preclude the Judge of Compensation Claims from exercising jurisdiction to determine the medical necessity and nonexperimental nature of the sauna biodetoxification therapy while review was pending before AHCA, the Judge of Compensation Claims acted within her jurisdiction in authorizing Dr. Rea to provide the requested therapy. (Emphasis added.)

6. This proceeding is no less moot that the AHCA review proceeding discussed immediately above. Here, as in the School Board of Manatee County case, AHCA should conclude that its

   determination in this case has been superseded by the final order of the Judge of Compensation Claims, and is therefore moot.

7. This proceeding should also be dismissed on the basis of res judicata or collateral estoppel. In University of Miami v. Zepeda, 674 So. 2d 765 (Fla. 3d DCA 1996), which affirmed a final order of an administrative law judge of the Division of Administrative Hearings, this court noted in footnote 2:

2. We hasten to point out that because it has been determined in this administrative proceeding that the minor child is not "permanently and substantially mentally and physically impaired," this issue may not be relitigated in the pending medical malpractice action between these parties. "Where an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it, as to which the parties have had an adequate opportunity to litigate, the court will apply res judicata or collateral estoppel to enforce repose." United States Fidelity and Guar. Co. v. Odoms, 444 So. 2d 78, 80 (Fla. 5th DCA 1984)(citing Jet Air Freight v. Jet Air Freight Delivery, Inc., 264 So. 2d 35 (Fla. 3d DCA), cert. denied, 267 So. 2d 833 (Fla. 1972)).

RECOMMENDATION

On the basis of all of the foregoing, it is

RECOMMENDED that the Agency for Health Care Administration issue a Final Order dismissing the petition in this case on the grounds that the issues raised are moot by reason of the final decision by the Judge of Compensation Claims, and that further litigation of those issues is barred by res judicata or collateral estoppel.

DONE AND ENTERED this 1st day of June, 1999, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1999.

ENDNOTES

1/ Mr. Thorogood was employed by Prudential Insurance Company at the time of his injury. The workers' compensation insurance carrier for Prudential was The Travelers Insurance Company.

2/ There was no appearance by or on behalf of the employer/carrier at the final hearing in this case. The employer/carrier was provided with a copy of the Petitioner's request for an evidentiary hearing, as well as with a copy of AHCA's notice that the request for hearing had been referred to the Division of Administrative Hearings. The employer/carrier never filed a motion seeking intervention, nor did it otherwise attempt to participate in this proceeding.

3/ The one exhibit offered by AHCA is designated as Respondent's Exhibit 2. An earlier exhibit marked for identification as Respondent's Exhibit 1 was withdrawn by the Respondent.

4/ The findings of fact are limited to the facts which show that this proceeding is moot or is barred by the doctrine of res judicata. Facts regarding the nature of the proposed medical treatment have been omitted as unnecessary.

5/ Fred Thorogood, Jr. v. Prudential Insurance Company of America, Travelers Insurance Company, 706 So. 2d 294 (Table of Decisions Without Published Opinions, Fla. 1st DCA 1998).

COPIES FURNISHED:

Karel Baarslag, Esquire

Agency for Health Care Administration 2295 Victoria Avenue, Room 309

Fort Myers, Florida 33906

Patrick J. Malone, Esquire

1080 East Indiantown Road, Suite 201

Jupiter, Florida 33477

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5402

Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 96-002740

Orders for Case No: 96-002740