I was at the JCC’s office yesterday and one of the Orlando Judges was telling me about a case of his that was just heard before the 1^st DCA regarding evaluations and diagnostic testing recommended by the treater.  This case involved a shoulder injury, and then subsequently, a referral for an MRI of the neck and an evaluation with an orthopaedic for the neck.

I know some of you have heard me lecture at CEU’s with Dr. Weber and Dr. Halperin about the interplay between the neck and the shoulder.   But the same legal standard applies to any referral from a treater for an eval or diagnostic test to rule in or rule out an injury or condition.   A claimant does NOT need to prove the accident is the MCC of the need for a diagnostic test or eval to determine MCC.  The E/C does have to pay for it to determine the casual relationship, and then can deny if its not MCC.  The 1^st DCA explained it very well:

“A Claimant must establish a causal relationship between his injury and the compensable accident in order to secure treatment, but not to be entitled to diagnostic testing to determine the cause of this symptoms.  Whenever the purpose of the diagnostic test is to determine the cause of the Claimant’s symptoms, which symptoms may be related to a compensable accident, the cost of the diagnostic test is compensable. This is true even though it should later be determined that the Claimant suffered from both compensable and non-compensable conditions.” 

The Major Contributing Cause standard should not be applied to bar the Claimant from receiving an additional diagnostic test to determine the cause of symptoms.  The key term we need to look for is the physician saying the test is necessary to determine…” Anita Chance v. Polk County School Board, 1D08-2235 (Fla. 1^st DCA, 2009).

So if you get a referral for a an unaccepted body part or condition to rule in or rule out casual relationship, you do need to authorize the eval only or testing.   Confirm with the doctor that the reason for it is to determine casual relationship or to rule out an unrelated cause.  (A good example is sometimes doctor’s ask for bloodwork to rule in or rule out rheumatoid arthritis or lupus as the the cause of symptoms.  Neither would be related in any way, but we would have to authorize the testing.)

Be sure your authorization form to the doctor states that it is for an eval only clearly so you don’t get hit with a bill for treatment.   Also, you should send the 120 day letter to be safe, as the initial provision of a benefit for a new condition would start your clock.  (There is no case on whether or not an eval only or a diagnostic test would be an “initial provision of benefits”, but you protect yourself by sending the letter regardless.)

The issue is up on appeal, with the E/C arguing the claimant has to prove compensability of the condition before the testing.   Unless the DCA changed their mind since 2009, this will remain the law…..I will keep you in the loop on the outcome.
Morgan Indek | Partner