I know personally that many adjusters are both overworked and underpaid.  But, it is still important to be aware of the medical benefit “deadlines” that the W/C statute imposes on E/C’s.

A Carrier that fails to comply with these deadlines forfeits its ability to contest requested medical treatment, even if that treatment is not medically necessary.

First, there is the 5 day rule, under section 440.13(2)(f), where the Carrier has 5 days after reciept of a written request by Claimant to authorize a change in doctors.  If the Carrier fails to provide the change, Claimant may select a doctor of her choosing and that doctor shall be deemed authorized by statute.  

Second, there is the 3 day rule, under section 440.13(3)(d), where the Carrier has 3 days to respond to a written request by an authorized provider for authorization of treatment.  If the Carrier fails to respond to the request it consents to the medical necessity of such treatment. 

Finally, there is the 10 day rule, which is an extention of the 3 day rule except it applies to big ticket items that cost more than $1,000 (surgery, diagnostic tests, etc.) and requires specific carrier authorization.  Under section 440.13(3)(i), the request is valid if the Carrier fails to respond within 10 days. 

Today, the First DCA released an encompassing opinion regarding both the 3 day and 10 day rules.  In Elmer v. 7-11, Claimant’s authorized treater made a formal written referral for pain management to the Carrier.   But, the Carrier failed to respond at all.  Despite this fact, the JCC denied Claimant’s request for the referral because pain management was not reasonably and medically necessary.  The First DCA reversed, relying on the 3 day and 10 day rule and finding the E/C forfeited the right to argue the referral was not medically necessary because it failed to timely respond within the statutory deadlines.

The Court does note that the deadline sections of the statute do not require the E/C to accept compensability of the requests for treatment, just to respond.  So, if you as an adjuster are not sure that the request is medically necessary, you may still respond that you are investigating the request, but you must respond. 

The problem is, with the new Emma Murray case, adjuster desks are getting buried under an increasing pile of paperwork.  It is often a herculean task just keeping up with what doctor is prescribing what treatment to what Claimant.  But, I emphasize: the important thing is to respond.  This can be an email or even a form letter, or even a phone call (although responding in writing is best for evidentiary purposes).  Just be sure to respond.

Finally, I think it is important to note what the Elmer decision does not mention.  That is, nothing of major contributing cause.  While the Court says a carrier that fails to respond to a request under statutory deadlines forfeits the defense of medical necessity, there is no ruling on a carrier’s right to defend the treatment on the grounds that is not related to the compensable accident.  Now, this would require a medical opinion stating such (like an IME), but I believe that even if a Carrier fails to respond timely, it can still argue that the requested medical treatment is not causally related to the compensable accident.

That being said, an adjuster should still respond to all requests for treatment by authorized doctors within the 3 day and 10 day rule to avoid unnecessary litigation.

Advertisements