WAIVER OF MEDICAL NECESSITY - SUMMARY OF RELEVANT STATUTES
Sometimes the best thing said is nothing at all - an expression that can often provide valuable advice, but not when it comes to the statutory provision of 440.13(3) (d) and (i),Fla. Stat. This provision covers situations involving the potential waiver of the employer/carrier’s (E/C’s) defenses to claims for medical benefits, namely to include a forfeit of a right to assert a defense of no medical necessity when the E/C does not meet certain deadlines.
440.13(3) (d), Fla. Stat., provides in relevant part:
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 written request for authorization for referral for medical treatment by the close of the third business day after the receipt of the request consents to the medical necessity for such treatment
440.13(3) (i), Fla. Stat. further provides that:
Notwithstanding paragraph (d), a claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, X-ray examinations, or special diagnostic laboratory tests that cost more than $1,000.00 and other specialty services that the department identifies by rule is not valid and reimbursable unless the services have been expressed 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.
PRIOR CASE LAW/FURTHER CLARIFICATION NEEDED
The 1st DCA has previously held that 440.13(3) (d) must be read with sections 440.13(2) (a) and (c) which provide a caveat that any medical care provided under 440.13 must be medically necessary as result of a compensable injury, and further indicates that the treatment should be in accordance with established parameters and protocols.
Case law interpreting these statutes stand for the general notion that the carrier must “respond” or take action in response to requests for medical benefits in order to avoid an argument the E/C waived its right to deny the request due to a lack of medical necessity. Case law and the statute indicates that section 440.13(3)(d), Fla. Stat. applies to requests for authorization from a physician only and not a claimant or the claimant’s attorney.
Likewise, it stands to reason that 440.13(3) (i) only applies to requests from physicians. In sum, both sections seem to apply to referrals from authorized physicians only and not from IME physicians or non-authorized physicians. However, further clarification is needed to confirm the legislative intent as to same, as well as to the definition of what constitutes a “written request for authorization” and what is considered to be a sufficient “response” to these requests in order to avoid a waiver of medical necessity argument by injured workers and their attorneys.
Fortunately, additional case law has affirmed the 1st DCA’s finding that any medical care provided under 440.13 must be medically necessary as a result of a compensable injury. In other words, both medical necessity and a causal connection between the compensable injury and the requested treatment must exist.
Therefore, even “if” an E/C were to waive its right to contest medical necessity, it may still assert that the claimant’s compensable injury is not the reason for the requested treatment- i.e. no major contributing cause or no causal relationship to the requested medical benefit. Moreover, under 440.13(2)(a), an E/C who does not issue a timely response is only required to continue to provide treatment so long as the recommended treatment is reasonable and medically necessary.
CASE LAW UPDATE - ALERT
In a recent case, AT&T Communications and Sedgwick CMS v. Victoria Murray Rosso (May 2, 2017, Fla. 1st DCA), the 1st DCA upheld an order awarding lawn services for this 1989 date of injury, with the JCC finding that such care would improve the claimant’s compensable conditions of depression and anxiety. The 1st DCA did not base the award on the claimant’s physical condition. The 1st DCA also found that the E/C waived its right to deny the medical necessity of other requested medical benefits, including attendant care, an AFO brace, and evaluation with a podiatrist under 440.13(3) (d).
It is concerning that the 1st DCA in this case appears to have applied the wrong subsection to the request for the podiatrist, i.e. 440.13(3)(d) and not 440.13(3)(i), and thus shortened the timeframe to respond to requests for medical benefits from 10 days to only 3 days- as if the adjusters and insurance carriers did not have enough deadlines to worry about: responses to petitions to avoid penalties, interest, and attorney fees, responses to one time changes of physicians, the 120 day rule, etc.
In sum, case law and the relevant statutes have held that an E/C is not required to authorize requested medical treatment, i.e. surgery within 10 days of receipt of the written request for authorization, but they do require that the E/C do something whether it involves an action as simple as a fax, letter, or phone call advising that the decision regarding authorization is under investigation, or whether it involves a decision to obtain an IME, physician conference, or EMA, which could obviously take more than 10 days to accomplish.While we await further clarification as to the facts and circumstances which may give way to a valid waiver of medical necessity argument, in the meantime, it is best to