Morgan’s Tip of the Week – Medical Non-Compliance

Greetings,  I have a had a few questions about claimant’s missing appointments and medical non-compliance.

First, we can not charge a claimant for the no-show fees for authorized treatment.   However, for an IME we can charge ½ of the no-show fee if we gave the claimant timely notice of the appointment, and the claimant did not give the doctor’s office 24 hours notice they would not be there (it doesn’t matter if the doctor’s policy is 48 hours, the clmt has 24).  The appointment letter for the IME must advise the claimant of the ½ the no show fee or we can not claim it.

So what is and what is not medical non-compliance?  

This was addressed in 1961 in the Lobnitz case (Lobnitz).  In that case, the claimant did not return to the doctor for 6 months despite having symptoms.  She tried to claim TPD for that 6 month window and the court denied it.   So that established if a claimant is medically non-complaint, you can deny indemnity, but you must continue to provide medical.  Missing one appointment is typically not going to be enough.  Missing three appointments without a reasonable reason likely is enough.  Two?  Maybe…. But be certain the claimant doesn’t have a reason such as transportation issues or they didn’t get the appointment letter.  Always copy the claimant’s attorney and your defense attorney (who should be in our firm…plug plug) on the letter.   

Missing physical therapy appointments is often an issue, and I would likely not suspend for missing those appointments.  A better tactic would be to ensure the treater knows the claimant is being non-compliant and perhaps ask the doctor to address MMI.

Another issue that comes up is postponing or delaying surgery to “think about it”.   We can’t compel the claimant to have surgery, but we can ask the doctor to address MMI until or unless the claimant goes through with the surgery.  The 1st DCA has also said we can not compel a claimant to attend an FCE (Functional Capacity Evaluation).   So missing that would not be medical non-compliance, but I would again let the doctor know to address minimal work restrictions unless the claimant proves otherwise by attending.

As always, let me know if you have any questions.

Morgan Indek | Partner