CASE LAW ALERT: AT&T Communications and Sedgwick CMS v. Victoria Murray Rosso
The 1st DCA just issued an opinion in which the Court upheld an award for lawn care services to a claimant as “competent, substantial evidence (CSE) supports the JCC’s finding that such care will improve Claimant’s compensable conditions of depression and anxiety.” The award of lawn services was not based on the claimant’s physical condition.
If that is not bad enough, the Court also upheld awards for attendant care, an AFO brace and evaluation with a podiatrist because the Employer/Carrier “forfeited the right to contest medical necessity for these items by failing to timely respond to a written request by an authorized health care provider.” Section 440.13(3)(d) was cited as the justification for preventing the E/C from relying on the “medical necessity” defense:
A carrier must respond, by telephone or in writing, to a request for authorization from an authorized health care provider by the close of the third business day after receipt of the request. A carrier who fails to respond to a written request for authorization for referral for medical treatment by the close of the third business day after receipt of the request consents to the medical necessity for such treatment. All such requests must be made to the carrier. Notice to the carrier does not include notice to the employer.
WHAT TO EXPECT:
- The 1st DCA just opened the “barn door” for claimant attorneys to request just about anything under the guise that it will improve the injured worker’s compensable psychiatric condition. This absurd new standard provides claimant’s with a clear formula for requesting benefits never before even contemplated by the legislature. Any claimant attorney will even a below average imagination can set the stage for an award of home improvements, an Amazon Prime subscription, a personal chef ... you get the idea.
- We have already started to see claimant attorneys arguing that the E/C is estopped from defending a claim based on the “medical necessity” defense either under Section 440.13(3)(d) or even Section 440.13(3)(i) which states:
a claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, X-ray examinations, or special diagnostic laboratory tests that cost more than $1,000 and other specialty services that the department identifies by rule is not valid and reimbursable unless the services have been expressly authorized by the carrier, or unless the carrier has failed to respond within 10 days to a written request for authorization, or unless emergency care is required.
In Rosso, the 1st DCA actually appears to have applied the wrong subsection to the request for a podiatrist which is especially concerning. This shortens the Carrier’s time from ten days down to three days for responding to the referral to a specialist. Fortunately, these sections seem to only apply to referral from authorized doctors and not an IME physician or other non-authorized doctors. Regardless, expect the claimant attorney to take full advantage of this ridiculous deadline much in the same way they ask for a one-time change of doctor either in a cryptic written request, on a Friday at 4:45 pm of Memorial Day weekend or some other ill-intentioned method.
BEST PRACTICES:
- Have a system in place to immediately respond to any request for treatment or referral from authorized doctors. Note that the statute simply requires the E/C to “respond” to the request and not necessarily make a decision on whether or not to authorize it. For example, you can have a form fax sent to any authorized doctor after you receive a request that states:
We are in receipt of your request for authorization of ___. Your request is currently being reviewed to examine medical necessity and causation. We may contact you to provide additional information, fill out a pre-certification form or answer questions to assist in the decision making process. We will be back in touch shortly.
- Take every claim seriously. Even if the claim seems frivolous, you still need evidence to support that position and cannot rely on the JCC simply agreeing. These cases are decided on evidence; not common sense. In this particular case, from a review of the JCC decision, it does not appear that the Carrier offered any expert testimony to counter the unfavorable medical opinions. Perhaps the carrier did not think the opinions would be accepted as, based on the JCC’s ruling, the carrier may have been unaware that the restriction on admissible medical opinions was not added to the Statute until 1994 and that was considered a “substantive change.” Regardless, the damage is done and now claims that may have seemed frivolous are now all legitimate.