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What Can You Do When Your Workers’ Compensation Injury Is Unbearable?
This blog entry is written to offer some insights that many of my clients with post-2003 accidents are concerned with pertaining to medical choice options when break through pain is not addressed by their authorized doctors. In my thirty-two years as a workers’ compensation lawyer representing various parties in workers’ compensation matters there have been many instances where the injured worker cannot wait to be heard by the authorized workers’ compensation doctor and needs to know what are her or his treatment options.
At Sadow & Gorowitz, P.A. we have experience as workers’ compensation lawyers dealing with these situations and that experience comes with a vast knowledge of the applicable laws as well as, if not just as importantly, with a vast knowledge of health care providers typically authorized to treat injured workers. While often the injured worker has no prior experience in the workers’ compensation system and no prior knowledge of the physicians authorized to treat them, the years devoted to these matters result in our intimate knowledge of the health care providers, their tendencies, their prior testimony on similar situations, and various litigation or other avenues necessary to assist our clients to achieve the best recovery possible.
Workers’ compensation matters require a sense of timing and understanding of when to best use various avenues to achieve a positive result. Many medical emergencies can be avoided by steering the claim correctly and assisting the injured worker to effectively, truthfully, and concisely articulate to their health care providers precisely what are the related symptoms and conditions resulting from their accident. Injured workers should never assume that workers’ compensation health care providers have been told about all facets of their injuries. We encourage our clients to clearly delineate each affected body part from the beginning.
Despite this, the reality is that the Florida legislature has given near absolute control of doctor selection in workers’ compensation cases to the employer and carrier, with very limited exceptions. Since these physicians may tend to favor the employer and carrier over the complaints and concerns of the patients they swore to treat, there are times when my clients face situations involving pain or discomfort are either ignored by authorized doctors or not addressed due to the health care providers not being available.
The Legislature gave the injured worker one option in F.S. 440.13(2)(f) where the health care provider is simply not satisfactory. That option can be exercised only once per accident. In essence, if the injured worker is dissatisfied with authorized medical care, she or he can ask for a “one-time change” of physician and the injured worker only get to select the alternate if the employer/carrier fail or refuse to offer the name of an alternate within five calendar days. There is a time to ask for a “one time change” and a time to wait and that depends on the circumstances of the case, the various injuries sustained and their priorities in terms of overall health. That is what we assist the injured worker to decide based on the totality of the circumstances. Yet there are circumstances when my clients tell me that they cannot wait because they are in acute and disabling pain. What are their options?
At times, the best option entails me contacting the insurance company to ask for the injured worker to be authorized to return to the initial clinic that treated them prior to referral to a specialist. Often unrepresented injured workers believe they have no choice but to go to “their own doctor or an emergency room.” Technically, the law once provided that an injured worker could rely upon the statutory “self-help” provision found in F.S. 440.13(2)(c) as explained in the case of Parodi v. Florida Contracting Co., Inc., 16 So. 3d 958, 962 (Fla. 1st DCA 2009) to attempt to obtain authorization for a previously unauthorized physician or perhaps an unauthorized surgical procedure throughout the life of the claim. This tactic is now fraught with risk for the injured worker if not handled in a manner consistent with the plain language of post-2003 Chapter 440.
The starting point for the analysis of such a claim for authorization of a previously unauthorized health care provider or surgical procedure is the plain language of the section upon which the injured workers rely:
Section 440.13(2)(c), Florida Statutes. This section provides:
If the employer fails to provide initial treatment or care required by this section after request by the injured employee, the employee may obtain such initial treatment at the expense of the employer, if the initial treatment or care is compensable and medically necessary and is in accordance with established practice parameters and protocols of treatment as provided for in this chapter. There must be a specific request for the initial treatment or care, and the employer or carrier must be given a reasonable time period within which to provide the initial treatment or care. However, the employee is not entitled to recover any amount personally expended for the initial treatment or care unless he or she has requested the employer to furnish that initial treatment or service and the employer has failed, refused, or neglected to do so within a reasonable time or unless the nature of the injury requires such initial treatment, nursing, and services and the employer or his or her superintendent or foreman, having knowledge of the injury, has neglected to provide the initial treatment or care.
Section 440.13(2)(c), Fla. Stat. (2012) (emphasis added).
In order to prevail under section 440.13(2)(c), Fla. Stat., the injured worker has the burden of showing (1) that he made a specific request for the care, (2) allowed the employer or carrier a reasonable time to respond, and (3) obtained care that was compensable, reasonable, and medically necessary. See Parodi v. Florida Contracting Co., Inc., 16 So. 3d 958, 962 (Fla. 1st DCA 2009).
In 2003, the legislature amended section 440.13(2)(c) to its current form. The previous statutory language did not include the repeated use of the word “initial.” In its current form, and the form applicable to post 2003 accidents, the statutory language is replete with the word “initial.” In order to illustrate the change, we should read the section one more time:
If the employer fails to provide initial treatment or care required by this section after request by the injured employee, the employee may obtain such initial treatment at the expense of the employer, if the initial treatment or care is compensable and medically necessary and is in accordance with established practice parameters and protocols of treatment as provided for in this chapter. There must be a specific request for the initial treatment or care, and the employer or carrier must be given a reasonable time period within which to provide the initial treatment or care. However, the employee is not entitled to recover any amount personally expended for the initial treatment or care unless he or she has requested the employer to furnish that initial treatment or service and the employer has failed, refused, or neglected to do so within a reasonable time or unless the nature of the injury requires such initial treatment, nursing, and services and the employer or his or her superintendent or foreman, having knowledge of the injury, has neglected to provide the initial treatment or care.
Section 440.13(2)(c), Fla. Stat. (2012) (emphasis added).
The plain language, and the intent of the legislature when it added “initial” to the statutory language, have been examined by the First District Court of Appeal. Specifically, in Carmack v. State, 31 So. 3d 798 (Fla. 1st DCA 2009), the court addressed whether section 440.13(2)(c) had the effect of requiring ongoing authorization of a physician authorized under the self -help provision. In this context, the court explained:
Section 440.13(2)(c) addresses only the situation whereby the employer fails “to provide initial treatment or care” (emphasis added). In such instances, an employee is entitled to obtain that “initial treatment at the expense of the employer.” Id. (emphasis added). “Initial” is defined as “of or relating to the beginning; marking the commencement.” Webster’s Third New Intl Dictionary 1163 (Unabridged 1967). The insertion of the word “initial” evinces the intent of the Legislature to restrict the application of this subsection to only the circumstances described therein -the “beginning” treatment for a particular condition. Id. at 800. (bold and underlined emphasis added).
Therefore, according to the First District Court of Appeal, after 2003 the self-help provision applies to the beginning treatment for a particular condition. A different analysis applies to claims for dates of accident prior to October 1, 2003.
To add to the complexity, the appellate courts have held that the injured worker has the burden of establishing medical necessity. See, e.g., Echevarria v. Luxor Investments, LLC, 159 So. 3d 991 (Fla. First District 2015). In order to be “medically necessary,” the medical service must be “appropriate to the patient’s diagnosis and status of recovery.”
The conclusion that section 440.13(2)(c) [2003] applies to initial treatment and does not apply in the context of a request for reimbursement for an unauthorized surgery performed by an unauthorized physician is supported by section 440.13(3)(i), Fla. Stat. This section provides, in relevant part:
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 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, unless the carrier has failed to respond within 10 days to a written request for authorization, or unless emergency care is required.
Section 440.13(3)(i), Fla. Stat. (emphasis added).
As a result, a surgery is not reimbursable unless it has been authorized by the carrier, even if the surgeon is directly authorized by the employer /carrier /servicing agent, UNLESS, the carrier is in possession of a request for authorization from an authorized health care provider and more than 10 days lapse without response to the request for authorization. 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. Elmer v. Southland Corp. /7–11, 5 So.3d 754, 756 (Fla. 1st DCA 2009). Although a carrier is not required to grant the request for a referral within the times specified in sections 440.13(3)(d) (three days) and (i) (ten days), it must respond to each written request within the time prescribed. As an incentive for prompt responses, the carrier is deemed to agree to the medical necessity of the referral, in the absence of a timely grant or denial. See id. See 1st DCA 2014) and Pearson v. BH Transfer, 163 So.3d 1280 (Fla .1st DCA 2015).
Thus, assuming the carrier timely responds to requests as provided in Chapter 440, if the legislature has barred a claim for reimbursement for surgery performed by an authorized physician in the absence of authorization for the surgery, it seems unlikely that the legislature intended the self-help provision to not only act to authorize an unauthorized physician, but also to excuse pre -authorization for a costly surgical procedure.
The injured worker who is not satisfied with an authorized health care provider has very limited options. If the injured worker was dissatisfied with her or his care, then he or she has the option of obtaining an independent medical examiner and using that expert’s opinion as the basis for a claim for the type of treatment sought, or as a basis for a suggestion of conflicting medical opinions compelling the JCC to order an EMA. There is another risky option.
We must also establish whether the care is of an “emergency” nature. Please look at Mathis v. Broward County School Board, 224 So.3d 852 (Fla. 1st DCA 2017).
This matter involves an order concerning the compensability of a $116,000 hospital bill incurred within the 14 days from the date of accident [the injured worker alleges she stepped on a rust nail and suffered a foot infection] and after the adjuster had formed the intent to deny the compensability of the claim, but had not yet filed a notice of denial. Id. at 853. The JCC denied the compensability of the bill. Id.
The injured worker was injured on 3/5/15, the injured worker was hospitalized on 3/10-17/15 and the denial was mailed on 3/17/15. The adjuster DID send out a 120-day letter and did authorize a visit with an authorized health care provider which took place on 3/5/15. That health care provider did refer the injured worker to the hospital for treatment of an infection. The JCC reasoned that because the claim was denied and the adjuster had not authorized nor known about the hospitalization when it took place, the E/C was not responsible for the hospital bill. The First District reversed. The First District found that the care here is considered compensable under the 120-day pay-and-investigate rule because the statute requires benefits to be provided during the investigatory period “as if the claim had been accepted as compensable.” § 440.20(4), Fla. Stat. Id at 856. So, did the injured worker prevail? The answer is that the injured worker was not yet out of the woods in this case because the First District sent the case back to the JCC to determine whether the hospital visit was, in fact, an emergency.
The Court stated, “the E/C were entitled to an opportunity to give prior authorization for the care under at least two statutory provisions. First, a referral from one health care provider to another requires prior authorization under section 440.13(3)(c), Florida Statutes (2014). Second, because the services provided to Injured worker cost more than $1,000, the E/C were entitled to a ten-day approval period under section 440.13(3)(i), Florida Statutes (2014), and the emergency-care exception to that ten-day period. The E/C are entitled to this approval period notwithstanding having elected to pay and investigate.” Id. at 856. Therefore, while the “pay and investigate” defense did not defeat the injured worker, the E/C still had the right to argue that the hospital visit fell within their 10-day investigatory period under F.S. 440.13(3)(i) [assuming it was not an emergency] and could be validly denied.
As we see from the cases above, navigating medical care under Chapter 440 of the Florida Statutes is a complex and confounding endeavor for unrepresented injured workers’ with legitimate injuries and a need for expensive/invasive treatment. The Florida Legislature has given the employers and carriers near absolute control of the selection of physicians to care for injured workers and many of those physicians have predictable opinions favoring the employer carrier. As an attorney representing injured workers’ I am here to assist my clients to navigate these treacherous waters and have the obligation to explain to my clients who call in acute and disabling pain or discomfort their options.
No case is the same or cookie cutter. My goal with my clients is to make certain that they are as familiar with the law and their options as the adjusters and lawyers representing the employer and carrier. My goal is to treat my clients as I would wish to be treated. I do not reside in an ivory tower and I do my best to take every call from every client or arrange to speak with them directly within 24 hours. Pain does not wait so I will make myself available.
