In Florida, Respond Timely to UR Requests or Risk Waiving Your Rights

| | Physician Peer Review, Utilization Review

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law and medicine

A significant case has come down from the Florida First District Court of Appeal. The case of Terry Pearson v. BH Transfer affirms that if workers’ comp insurance carriers or self-insured employers fail to respond to a request for treatment within 10 days, they waive their rights to contest medical necessity.

The facts of the case involve an individual named Terry Pearson. On April 4, 2012, Mr. Pearson injured his back while working for B-H Transfer, a trucking business with operations in several states. During the course of Mr. Pearson’s workers’ comp claim his authorized treating physician, Dr. Hirsh, requested authorization for back surgery. However, Chartis Claims, the insurance carrier for BH Transfer, failed to respond to Dr. Hirsch’s written request within 10 days.

Mr. Pearson was represented by Florida workers’ comp attorney Paul Anderson. Anderson argued to the workers’ comp judge, in Florida referred to as the Judge of Compensation Claims (JCC) that Chartis Claims blew the statute. Anderson specifically referred to F.S. 440.13 (3)(i), which gives a carrier (or employer if self-insured) 10 days to respond to an authorized doctor’s request for treatment. If the carrier fails to respond within the 10-day timeframe, it waives the ability to contest the medical necessity of the treatment. Interestingly, the workers’ comp judge (JCC), denied the request for back surgery and took the extra step to declare the surgery not medically necessary.

Chartis Claims was represented by Christopher J. DuBois, an experienced workers’ comp defense attorney. He argued that because the JCC had ruled that the requested back surgery was not medically necessary the F.S. 440.13 (3)(i) was not applicable. In other words, Chartis Claims should not have to pay for back surgery the JCC ruled was unnecessary, regardless of whether or not Chartis responded within 10 days.

Attorney Paul Allen, upset that Chartis Claims had not responded within 10 days, appealed to the Florida First District Court of Appeal. The Court of Appeal ruled that the JCC had erred when he denied Terry Pearson’s request for authorization on the grounds that the surgery was not medically necessary. The Court of Appeal ruled that the JCC’s interpretation of F.L. 440.13(3)(i) was erroneous, and they reversed and remanded.

Specifically, the Court of Appeal stated that in their past holding of Andino-Rivera v. Alt. Beverage Co. 132 So. 3d 1191, they had held that by way of F.L. 440.13(3)(i) an employer “forfeits the right to contest medical necessity” unless the carrier or employer responds to the authorized doctor’s written request within the time allowed. In Pearson’s case, because Chartis Claims failed to respond to Dr. Hirsch within 10 days they indeed forfeited their right to contest medical necessity. And this is regardless of what the JCC did in finding that the surgery was not medically necessary.

No doubt, many carriers and self-insured employers were hoping for an erosion of the F.L. 440.13(3)(i) 10-day requirement. Many believe it is fundamentally unfair to require a workers’ comp carrier or self-insured employer to pay for treatment that is not medically necessary, regardless of whether they respond within 10 days.

Many believe that if the Florida legislature wants to encourage timely responses to authorized doctors’ requests, then an administrative penalty for failing to do so would be more logical. But in the current system, treatments that are not medically necessary drive up workers’comp costs for businesses in the state. This is to say nothing of another important consequence – subjecting injured workers to unnecessary surgery due to an administrative issue (a late response).

The takeway from this case is clear. There has been no erosion of the 10-day requirement, and workers’ comp carriers and self-insured employers must remain vigilant about responding timely to requests for treatment authorization.

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Tom Swiatek

Tom Swiatek

As Assistant Vice President of Regulatory Services, General Counsel, and Editor in Chief of UR Nation, Tom Swiatek draws on his experience as an insurance attorney on both the general liability side, as well as on workers’ compensation matters. As a California Workers’ Compensation Section Member, Tom is leading the discussion with respect to the regulatory challenges and opportunities facing the workers’ compensation system.