Important Appellate Win by Bill Rogner
(2-25-26)
Publix Super Markets, Inc., Normandy Insurance Company, et al v. Department of Financial Services, Division of Workers Compensation, et al., ___ So.3d ___ (Fla. 1st DCA 2/25/26)
Medical Benefits/Rule-Making Authority
Over two years after oral argument, Bill Rogner received an opinion from the First DCA accepting his arguments that Chapter 440 does not authorize physicians to charge for and dispense medications in workers’ compensation case.
The original issue arose on 3/31/20, when DFS issued a memo stating that carriers could not refuse to pre-authorize and pay for medications prescribed for and dispensed by physicians. After initially rescinding the memo, the Rule was re-issued. On 3/7/23, an ALJ issued a Final Order stating that DFS had the rule-making authority to interpret the law to mean that injured workerscould obtain their medications from any source.
Effective 7/1/23, DFS interpretation was that F.S. s. 440.13(3)(j) allowed employees the right to choose doctors or nurses registered as dispensing practitioners. The DCA agreed with our argument that the plain language of the statute allows injured workers only their choice of pharmacy or pharmacist, and nothing more. They stated that the “absolute choice” language regarding pharmacies or pharmacists does not include dispensing practitioners. DFS’s interpretation improperly enlarged, modified and contravened the statute, and was an invalid exercise of delegated legislative authority.
The DCA set aside the prior Order. Opinion_2023-0941.pdf