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Treat Yo’ Self – Self-Help in FL Workers’ Comp.

By: Wes Heim, Associate, Tampa

When treatment is denied in a pending comp. claim, an injured worker may be permitted to seek initial treatment at the expense of the Employer under Fla. Stat. 440.13(2)(c) (2003). The initial burden to the Claimant is to demonstrate a request for initial treatment/care and that a reasonable period of time is allotted to the Employer to provide that care. If the Employer fails to provide the requested care, within a reasonable amount of time, the Claimant may be able to seek reimbursement for expenses they have paid seeking the initial treatment. This, of course, assumes compensability is later established/accepted in the claim (and the requested care is indeed reasonable/medically necessary).

But what is a reasonable amount of time? In law, this question intermittently rears its head, and here again, the answer is not entirely clear. A search and review of numerous orders from the OJCC database yields multiple potential answers including:

10 days’ per Fla. Stat. 440.13(3)(i)

Russell v. State of FL. Dept. of Corr., OJCC Case No: 10-0035257RJH.

14 days’ if the initial request is within a PFB per Fla. Stat. 440.192 procedures (though even the OJCC recognized this 440.13.(2)(c) reasonable time as ‘nebulous’

Borst v. On-Site Fuel Svc., OJCC Case No: 10-043374DEJ.

14 days’  

Talbot v. Miami Marlins, OJCC Case No: 13.027936MAM.

Certainly more than 1 day

Cruz v. Miami Air International Inc., OJCC Case No: 12-013700MAM.

More than 5 days’ and likely acceptable if within 30’  

Joseph v. Courtyard by Marriot, OJCC Case No: 18-007450CJS.

Definitely more than 0 days’ (Claimant underwent care under the guise of ‘self-help’ the same date as the request was submitted in this case!)

Sauveur v. City of Fort Pierce, OJCC Case No: 13-023909KFO.

Now that we have things perfectly unclear – it’s worthwhile to take a deeper look at the language in 440.13(2)(c), namely, initial treatment. The word “initial” was not always included in this section of the Statute but its addition to the language in the modern law provides the public with ample notice of the Legislature’s intent here; to ONLY provide reimbursement opportunity for initial treatment otherwise properly sought under the self-help provisions. A plain reading of the Statute therefore dictates no reimbursement would be payable for multiple dates of service incurred by the Claimant. Henry v. Hillsborough County Animal Serv., OJCC Case No: 18-011594JLN (Final Order – 12/18/2018).

Though this may seem somewhat counterintuitive, proper procedure would entail an injured worker: (1) timely report an otherwise compensable workers’ compensation accident and request medical care, (2) wait a reasonable time after this request in which the EC ultimately does not provide the requested initial evaluation, (3) Claimant securing an initial evaluation with a provider and requesting reimbursement for out of pocket expenses therefrom followed by, (4) a potential PFB requesting authorization/compensability of care/treatment recommendation(s) from that initial evaluation (as well as reimbursement of the expense of that initial care).

Importantly, Fla. Stat. 440.13(2)(c) does not permit Claimant’s to seek repeat appointments thereafter (or, at least, to expect reimbursement for them). It does not entitle the Claimant to seek care with a recommended specialist, nor does it permit them to elect/pay out of pocket and expect reimbursement for a recommended surgery. Simply put, if subsequent care is on the table, the OJCC and a PFB is the Claimant’s mechanism to try to get it.

All in all, when a Claimant screams: “Treat Yo’ Self” knowledge of Fla. Stat. 440.13(2)(c) will very much help to curtail what could otherwise turn into a shopping spree…

Medically speaking, of course!