I have had a few questions about denying a claim when a claimant has been uncooperative in a few different scenarios. Most of the time, the statute does not allow for a full denial, but there are some remedies available to the Employer/Carrier.
- Claimant refuses to call you back to complete the 3-point contact – The statute does not require a claimant to call you back or to allow their statement to be taken for a claim to be compensable. If you have enough information to indicate it’s a compensable claim, then you cannot deny for this reason. However, if the facts are not clear and that determination can not be made, in some circumstances, a denial may be warranted.
- Claimant refuses to sign a medical release– Again there is no requirement a claimant sign a medical release so you can obtain his unauthorized or preexisting records. However, a claimant must sign and return the Fraud statement from the initial packet or you can suspend all benefits until you get it. Also, a claimant must return the DWC-19’s within 21 days or you can suspend You can tell the claimant they need to return these forms from the initial packet or the benefits will be suspended, and that may then prompt them to sign everything in the packet and return to you, including the medical release.
I have helped a few carriers craft a one page Fraud statement and medical release, with two signatures on it, that ensures you get the medical release back. Also, you can always assign an atty (in our firm because you are smart) for the sole purpose of sending subpoenas if you can’t get the release back.
- Claimant refuses to provide you with concurrent earnings info– Under 440.14(5)(b), its their burden to get you that information. But to be safe you should always try and obtain the information, and also remind the claimant to obtain it as well. You have to pay using the AWW you have pending the receipt of the concurrent earnings, and then go back and pay any underpayment when you get the earnings, but no P & I or fees are due. The statute says:
The employee waives any entitlement to interest, penalties, and attorney’s fees during the period in which the employee has not provided information concerning the loss of earnings from concurrent employment. Carriers are not subject to penalties under s. 440.20(8)(b) for unpaid compensation related to concurrent employment during the period in which the employee has not provided information concerning the loss of earnings from concurrent employment.
- Claimant misses authorized appointments/refuses surgery– There is no specific requirement the claimant undergo any specific treatment in the statute, and it is their right to refuse surgery, injections, FCE’s etc….however there can be repercussions. If the claimant unreasonably misses more than 1-2 authorized medical appointments, you can suspend indemnity for medical non-compliance. When they do attend, you have to reinstate indemnity. You can’t charge a claimant the no-show fees for missing authorized appointments, only ½ the no show fee for missing our IME.
A claimant can refuse surgery, injections, medications, etc…but you can ask the doctor to address MMI if that occurs. MMI is when there can be no further expected improvement with treatment, and if treatment is being refused, there can be no further improvement (unless there are other options). The 1st DCA has said an FCE is not unlike treatment, and a claimant can refuse to undergo the evaluation. I recommend going back to the doctor and asking him to assume the restrictions are fairly non-restrictive unless the claimant shows otherwise.
These are just a few of the situations that have come up lately. Please let me know if you have any questions.
Morgan Indek | Partner