I’ve written about the 3-day rule and the 5-day rule located in section 440.13, but there is also the self help provision that Employer/Carriers must worry about.  Now the First DCA just reinforced  s. 440.13(2)(c), otherwise known as the self help provision, which allows Claimant to seek medical treatment on her own, if said treatment is later found to be compensable and medically necessary.

What this means is to deny a claim or deny medical benefits carries higher risks.

In Parodi v. Florida Contracting Co., the E/C accepted Claimant’s accident and injuries as compensable.  That is until the E/C discovered Claimant had prior accidents and they suspended all benefits.  Claimant subsequently obtained treatment on his own and filed for reinstatement of benefits as well as reimbursement of the medical bills he incurred and PTD benefits.

The JCC ultimately found that the treatment Claimant obtained on his own was compensable and medically necessary as dictated by s. 440.13(2)(c), which allows Claimant to seek such care should a specific request be made and the E/C be given a reasonable amount of time to respond.

However, the JCC did not allow the testimony of Claimant’s unauthorized doctors to be considered as evidence based on s. 440.13(5)(e) which bars any evidence from a doctor that is not an IME, EMA, or authorized physician.  This ruling makes absolutely no sense.  If a doctor’s treatment is considered by a judge to be compensable and medically necessary, then shouldn’t that doctor’s testimony have to be considered as evidence?  The First DCA agreed and reversed the JCC’s inconsistent ruling.

The reasoning by the Court is important to understand.  The E/C does have a right to choose Claimant’s physicians.  However that right is connected to the obligation an E/C has to provide medical care timely.  If the E/C fails to meet that obligation it surrenders to the Claimant the right to choose physicians (provided the care is compensable and medically necessary).

Please note that the Court does make an exception for fraud cases and major contributing cause defenses.  So, if the E/C feels that Claimant committed fraud or the accident is no longer the major contributing cause it can still deny the claim, and if proven correct the care obtained by Claimant (even if medically necessary) would not be compensable.

What this means for your practice is obvious.  When denying a claim or a specific request for benefits, be sure you have solid evidence to support the denial.  Many times, Claimant will request for a specialist that was never recommended by an authorized treating doctor.  Even though never recommended, it is possible an authorized doctor could find the specialty care to be medically necessary and compensable.  I’ve seen this happen after the denial, during the authorized doctor’s deposition.  At that point, we lost.  The evidence will support Claimant’s unauthorized care. 

Just because the care was not recommended, does not mean it is not compensable.  In essence, be sure to confirm before you deny.

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