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)
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.
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.
- 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.