The legislative intent of Florida’s work comp system is to be a self-executing system wherein the shared goal would be helping the injured worker recover from on-the-job injuries at a reasonable cost to the employer. In practice, however, there are often at least two teams in this system with most players clearly identified as being either on Team Injured Worker or Team Employer/Carrier. The role of the Nurse Case Manager (NCM) is slightly more ambiguous. Retained and paid by the Employer/Carrier but ethically required to put the interest of the injured worker first, the NCM operates in a position of inherent conflict of purpose. To effectively represent injured workers, it’s important to know when a NCM has been assigned to a case and how this person will balance the interests involved.
In Florida, there is a Commission for Case Manager Certification (CCMC) which certifies and maintains records of medical case managers as well as establishing professional ethics by which case managers are to perform their jobs. According to CCMC ethical rules, the primary responsibility of the case manager is to the patient (i.e., injured worker) above all else, including the interests of the contracting party (i.e., Employer/Carrier/Servicing Agent). Therefore, it stands to reason that an ethical NCM may need to ignore requests, or perhaps even mandates, by the carrier which are issued solely for the purpose of cost containment. Fortunately, there are certain NCMs who take their ethical obligations seriously and make a positive difference in the recovery of injured workers. On the other hand, it also doesn’t take too many interactions with other work comp NCMs to appreciate how financial motivations may often win out over the best interests of the injured workers.
Experienced claimant attorneys will usually look at the presence of the NCM in a case with a certain amount of skepticism and spend the time to educate injured workers about the dual role the case manager will play by not only assisting with medical coordination but also looking out for the cost containment goals of the insurance company. The general rules from the claimant’s perspective are that NCMs should not have direct contact with injured worker clients, nor should they be allowed to attend doctor appointments with the injured worker patient. While direct coordination of medical appointments with the injured worker can be convenient and innocent enough, direct contact creates an opportunity to overstep, unintentionally or otherwise, into conversation about how the injured worker is doing and on and on. With few exceptions, it is much safer that all contact be directed and handled through the injured worker’s attorney. Depending on the personality of the client and trustworthiness of the NCM, these rules can sometimes be relaxed accordingly.
With regards to attending the injured worker’s appointments with doctors, many NCMs tend to monopolize the doctor’s already limited time and attention, taking up a majority or the entirety of the appointment addressing the carrier’s concerns. This leaves the injured worker with little or no opportunity to discuss his or her questions about the injury or treatment options. The goal of an appointment with an authorized medical provider should always be for the doctor and patient to communicate effectively about the status of the work injury and medically necessary treatment for recovery. Allowing the NCM to attend medical appointments can significantly impede this goal and leave an injured worker frustrated and without adequate assessment of the work injury.
However, having said all of that, there are those injured workers with the right level of understanding and personality who can effectively advocate for themselves when a nurse case manager is present at the medical appointment. In these situations, it may be better to allow the NCM to be present rather than creating the need for an ex parte meeting with the doctor later. Opinions by the doctor regarding causation, work restrictions, MMI, and recommended treatment are extremely important. Having an injured worker participate in and hear the conversation between the doctor and the NCM can be a critical component in evaluating the motivations of the NCM and the direction of the case.
Two litigated issues surrounding the work comp NCM are becoming more and more prevalent. The first is the ability of the NCM to meet ex parte with the doctor. Section 440.13(4)(c), Florida Statutes, provides:
“It is the policy for the administration of the workers’ compensation system that there shall be reasonable access to medical information by all parties to facilitate the self-executing features of the law. An employee who reports an injury or illness, alleged to be work-related, waves any physician-patient privilege with respect to any condition or complaint, reasonably related to the condition for which the employee claims compensation. Notwithstanding the limitations in section 456.057 and subject to the limitations in section 381.004, upon the request of the employer, the carrier, and authorized qualified rehabilitation provider, or the attorney for the employer or carrier, the medical records, reports, and information of an injured employee relevant to the particular injury or illness, for which compensation is sought, must be furnished to those persons and the medical condition of the injured employee must be discussed with those persons, if the records and the discussions are restricted to conditions relating to the workplace injury.”
This statutory provision sets up the basis for ex parte communications by the E/C with authorized medical providers as to the work injury. Do nurse case managers fall within the specified entities allowed to initiate and participate in ex parte conversations? The statute mentions “an authorized qualified rehabilitation provider” as one of the entities allowed to participate in such ex parte contact.
A qualified rehabilitation provider is defined as “a rehabilitation nurse, rehabilitation counselor, or vocational evaluator providing reemployment assessments, medical care coordination, reemployment services, or vocational evaluations under this section, possessing one or more of the following credentials:
- Certified Rehabilitation Registered Nurse, C.R.R.N., certified by the Association of Rehab Professionals;
- Certified Rehabilitation Counselor, C.R.C., certified by the Commission of Rehabilitation Counselor Certifications;
- Certified Case Manager, C.C.M., certified by the Commission for Case Management Certification;
- Certified Disability Management Specialist, C.D.M.S., certified by the Certified Disability Management Specialist Commission;
- Certified Vocational Evaluator, C.V.E, certified by the Commission of Rehabilitation Counselor Certification;
- Certified Occupational Health Nurse, C.O.H.N., certified by the American Board of Occupational Health Nurses.”[i]
While many NCM may have one or more qualifications listed here, it should not be automatically assumed the NCM assigned to coordinate care on a case is providing services as a “qualified rehabilitation provider.” The commissions and associations responsible for the appropriate certifications as outlined above have online access to verify whether a case manager is certified and thus entitled to ex parte meetings with the doctor.
Most NCMs are not employees of the insurance company. They are either independently contracted by the E/C or they are employees of a case management company which has contracted with the insurance carrier to provide case managers. When not an actual employee of the carrier, the NCM is undertaking case management duties as an “agent” of the carrier. It has been argued by the E/C that such nurse case management agents may take all actions including ex parte communication with doctors as an extension of the employer or adjuster. However, at least one JCC has pointed out that the Legislature, in section 440.13(4)(c), chose not to include language allowing an employer’s or carrier’s “agent” to have ex parte communications with physicians. Furthermore, the JCC held that until such time as the E/C can demonstrate that the nurse case manager “falls squarely within the definition of employer, carrier, qualified rehabilitation provider, or the attorney for the E/C, the nurse case manager would be prohibited from having ex parte communications with any of the claimant’s authorized medical providers.”[ii]
A second litigated situation involves the ability of the injured worker to obtain notes from the nurse case manager including communications with the doctors and adjuster. Such requests for production are almost always met with an objection based on work-product privilege. However, documents prepared in the ordinary course of business by nurse case managers in Florida workers’ compensation cases, such as notes from conversations with doctors or instructions for case management duties from the adjuster are generally not protected under the work product doctrine unless the E/C can show they were prepared in anticipation of litigation. The work-product doctrine in Florida protects materials prepared in anticipation of litigation or for trial by or for a party or its representative, including agents, consultants, or insurers, as outlined in Florida Rule of Civil Procedure 1.280(b)(3).[iii]
However, documents created in the ordinary course of business, or for purposes unrelated to litigation, do not qualify for work-product protection. For example, documents prepared solely for administrative or operational purposes, such as routine business records or reports, are not protected unless they were also prepared with litigation in mind.[iv] The determination of whether a document is protected depends on whether it was prepared in response to an event that foreseeably could lead to litigation, applying an objective standard, and the burden is on the objecting party to show this evidence.[v]
In the context of workers’ compensation cases, Florida law emphasizes the self-executing nature of the system, which includes reasonable access to medical information and records to facilitate claims processing. This policy should further limit the applicability of the work-product doctrine to routine documents prepared by NCMs unless they were specifically created in anticipation of litigation.[vi] An additional consideration should be the ethical obligation imposed by CCMC on NCM to the injured worker. Putting the best interest of the patient first should mean that most notes by the NCM about the case are intended to be created to assist with the recovery of the injured worker and thus, by their very nature, would not be prepared in anticipation of litigation and would not fall under the work-product privilege. (Furthermore, keep in mind that failure to file a privilege log as required by Fl. R. of Civ. Proc. 1.280(c)(6) (2025) results in a waiver of any claims of attorney-client or work-product privilege.)
Most attorneys representing injured workers have at least one war story involving a NCM who failed to meet expected ethical standards one way or another and harmed an injured worker or the claim. However, NCM can fulfil helpful roles in the coordination of authorized medical treatment, timely obtaining the necessary opinions from treating physicians, and helping unrepresented injured workers navigate a difficult system that is often confusing and frustrating. Even assisting with cost containment and helping injured workers return to work are legitimate roles since ultimately the health of the overall work system depends on medical treatment being provided at reasonable and sustainable cost. The challenge for the NCM is to make sure the best interest of the injured worker is always primary, and cost containment does not become the overriding factor in decisions about medical treatment and return to work.
By: Kimberly J. Syfrett, Esq. Syfrett, Dykes & Furr
[i] Fla. Stat. §440.491.
[ii] Herrera v. City of Lakeland/Corvel Enterprise Corp, Inc., OJCC Case No. 25-001705BJA, March 13, 2025.
[iii] Zirklebach Constr., Inc. v. Rajan, 93 So. 3d 1124 (Fla. 2nd District 2012), Genovese v. Provident Life & Accident Ins. Co., 74 So. 3d 1064 (Fla. 2011), S. Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377 (Fla. 1994).
[iv] National Union Fire Ins. Co. v. Florida Constr., Commerce & Indus. Self Insurers Fund, 720 So. 2d 535 (Fla. 2nd District 1998), Marshalls of MA, Inc. v. Minsal, 932 So. 2d 444 (Fla. 3rd District 2006).
[v] Ted & Stan’s Towing Serv. v. Bulk Express Transp., Inc., 349 So. 3d 533 (Fla. 3rd District 2022), Ruby Tuesday, Inc. v. Metalonis, 225 So. 3d 397 (Fla. 5th District 2017).