Jeffrey P. Gale, P.A. // Florida Workers’ Compensation — Devil in the Details

Every type of legal matter is governed by consequential procedural and substantive rules and regulations. Some are universal to every type of case, while some are unique to the particular type of legal matter.

Florida’s workers’ compensation system, in particular, has many consequential unique rules and regulations. This blog will address one of them, the law concerning the authorization of medical services following the recommendation of an authorized medical provider.

Chapter 440 of Florida’s statutes is the statutory body of law that governs Florida workers’ compensation cases. 440.13 is the section of Chapter 440 that addresses medical care issues. Sections 440.13(2) and (3) concern the duties and obligations of employers and their insurance carriers regarding the provision of medical care. (Most cases are handled by insurance carriers.)

For the most part, injured workers are not allowed to select their own doctors. That right rests with the carriers. In many instances, an authorized medical provider will request authorization for referral for medical treatment. Some of the most common requests are for physical therapy, MRIs, referrals to specialists, and injections.

Sections 440.13(3)(d) and (i) govern the carrier’s obligations upon receipt of a properly made request for referral for medical treatment. Subsection (i) deals with claims “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….” Subsection (d) deals with requests for authorization of a less substantial nature. For matters covered by subsection (d), “A carrier must respond, by telephone or in writing” … “by the close of the third business day after receipt of the request….” For matters falling under subsection (i), the carrier has ten days to respond.

The consequence of the carrier’s failure to respond timely is that the carrier is deemed to consent to medical necessity. See section 440.13(3)(d); see, also, Andino– Rivera v. Se. Atl. Beverage Co., 132 So.3d 1191, 1193 (Fla. 1st DCA 2014) (“Under sections 440.13(3)(d) and (i), an employer or carrier ‘forfeits the right to contest’ the medical necessity of an authorized doctor’s referral for (additional) medical treatment, unless the employer or carrier responds to the authorized doctor’s written request for a referral within the time allowed.”); City of Panama City v. Bagshaw, 65 So.3d 614, 615–16 (Fla. 1st DCA 2011) (same); Elmer v. Southland Corp., 5 So.3d 754, 756 (Fla. 1st DCA 2009) (same).

Medical necessity is often a point of contention. Hence, having it deemed as a matter of law can be a big deal.

Section 440.13(1)(i) defines medical necessity as follows:

‘“Medically necessary”’ or ‘“medical necessity”’ means any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient’s diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe. The service must not be of an experimental, investigative, or research nature.

Medical necessity is one of the gateways to the authorization of medical care. This is why:

“[T]he employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require….” See section 440.13(2)(a), Florida Statutes.

To avoid having medical necessity deemed against it, how must a carrier “respond” to a referral request? In Elmer, the court indicated that “the statutes in question do not require an E/C to authorize a referral request by an authorized treating doctor within the time specified, [but] they do require an E/C to respond.” Elmer at 756.

Elmer went on to say that sections 440.13(2)(a) and (2)(c) “provide a caveat that any medical care provided under section 440.13 must be medically necessary as a result of a compensable injury,” while City of Panama City v. Bagshaw, 65 So.3d 614 (Fla. App. 2011) held that

[B]oth medical necessity and a causal connection between the compensable injury and the requested treatment must exist. Therefore, even if under section 440.13(3)(i) an E/C waives its right to question the medical need for requested treatment, it may yet contend that the claimant’s compensable injury is not the reason treatment is needed.

An example may clarify the point: We represent a gentleman who twisted his knee on the job. The workers’ compensation clinic doctor referred him for an MRI. The MRI showed a tear. The board certified radiologist could not age the tear. However, the clinic doctor said it was not related to our accident and released claimant within a month. He did not refer the claimant to a specialist. We requested a 1x change to another doctor. The carrier authorized the change. That doctor performed a clinical evaluation and read the MRI report. He concluded that claimant needed to be seen by a specialist. The carrier failed to respond to the referral request within ten (10) days. In response to our Petition for Benefits seeking authorization of the referral, the carrier “denied [the referral] as [the] need for the same is unrelated to the industrial accident.” The carrier is not denying the medical necessity of the claimant being seen by a specialist for the injury revealed by the MRI. Rather, it is denying that the injury was caused by the accident and, therefore, the need for a specialist is not the result of the industrial accident. Fair enough. If the matter goes to trial, the issue for the court to decide will be whether the injury for which the referral to the specialist was made was caused by the accident. We will not be fighting over the medical necessity of the referral. That issue has already been decided by 440.13(3)(d) and (i).