Florida: Court Affirms JCC’s Refusal to Refer Injured Employee to Spanish-Speaking Psychologist

A divided Florida appellate court affirmed a JCC’s rejection of an injured employee’s request for referral to a Spanish-speaking psychologist as recommended by the employee’s treating physician.  Agreeing that the referral to a Spanish-speaking expert was not “medically necessary,” the majority said the question here was not whether the expert’s testimony was unrebutted, but whether it was “sufficiently persuasive” to the finder of fact, in the first instance, to establish medical necessity. The majority added that here the treating physician had used the “magic words,” but, based on the JCC's permissible evaluation of this evidence, the substance of his testimony failed to establish reasonably medical certainty.  Justice Thomas dissented, saying no medical evidence supported the JCC’s view and that the presence of a non-psychiatric interpreter would interfere in the sensitive nature of the psychotherapist-patient relationship. For Justice Thomas, the case turned on the issue of whether a Spanish-speaking employee may be required to accept psychiatric evaluation by a non-Spanish speaking psychiatrist, against the medical opinion of a treating neurologist. The obvious answer in Thomas’ view was no, because to do so is to deny medically necessary treatment in violation of Chapter 440.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See Trejo-Perez v. Arry’s Roofing, 2014 Fla. App. LEXIS 8384 (1st DCA, June 3, 2014) [2014 Fla. App. LEXIS 8384 (1st DCA, June 3, 2014)]

See generally Larson’s Workers’ Compensation Law, § 94.02 [94.02]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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