Medical Necessity – 3 day or 10 day rule?

By: Kristofer Vander Pyl, Associate, Orlando

To be compensable, the Florida Statute 440 requires the treatment, device, or aid be medically necessary.

When it comes to the authorization of medical care, we only have two avenues of denial: 1) the major contributing cause of the initial or continued need for treatment is not the industrial accident, or, in the alternative, 2) the medical treatment recommended is not necessary.

Under 440.13(3)(d) and (i) Florida Statutes (2002), the written request from an authorized physician for treatment costing less than $1,000.00 has to be responded to within 3 days, or within 10 days if the treatment in question would be for more than $1,000.00. If we do not respond timely then we are essentially surrendering perhaps the best defense, and may have to pay for a major procedure. If there are no priors, or an unrelated condition, we may be left with no defense at all… Pas bon! (French for “No Good!”)

Ok, now for the good stuff; what qualifies as a “response”? As expected, neither the statute nor case law provides any plain explanation on the matter. 

In a 1st DCA case, City of Panama City v. Bagshaw, 65 So. 3d 614 (Fla. 1st DCA 2011), the Claimant’s authorized treating physician requested left knee arthroscopy. The Employer/Carrier did not timely respond to said request. The JCC subsequently awarded medical benefits and found the Employer/Carrier responsible for the Claimant’s attorney’s fees and costs. The JCC also concluded that the Employer/Carrier waived its right to challenge the claims because it did not timely respond to requests from the Claimant’s authorized treating physician for treatment. The Employer/Carrier challenged the JCC’s findings and asked the 1st DCA to determine whether, under section 440.13(3)(i),  an Employer/Carrier must authorize or deny a written request for treatment within ten days of receiving the request.

The 1st DCA reversed and remanded the decision. The Court reasoned that in reading the plain language of sections 440.13(3)(d) and (3)(i) the Employer/Carrier is not required to authorize a referral request by an authorized treating doctor within the time specified, [but] they do require an Employer/Carrier to respond.

This still leaves us scratching our heads over what qualifies as a “response.” In light of the 1st DCA’s line of cases, the safe route is to fax/email a letter to the authorized provider who has requested the treatment, advising that the referral/prescription has been received and is being reviewed. This would be enough to qualify as a “response” if you are not able to make the determination within the allotted 3 or 10 day timeframe. If you simply don’t answer, then you are estopped from raising the defense. Pas bon du tout! (Not good at all!)

Again, this is particularly important when any recommendation for surgery is involved. You do not want to be stuck with the payment of a 3 level cervical fusion simply because it was not responded to timely when the request was in fact not reasonable and medically necessary.