Greetings, earlier this week the 1^st DCA heard oral arguments in a case involving MCC and the 120 day rule.  The case is Williams v. Tampa Electric, OJCC # 15-029577, and we do not have a decision yet.

The issue in the case is one that comes up often, so I wanted to address it.  We have to be careful when we provide any treatment that involves a preexisting condition so as not to get stuck with it permanently.

In a quick summary, the claimant had a compensable knee injury in 2013.  He underwent a knee arthroscopy in Jan 2014, and after the surgery the post-operative diagnosis included arthritis.   In May 2015, the doctor performed viscosupplement injections, and the diagnosis was osteoarthritis.  In Dec 2015, the doctor recommended a Total Knee Replacement (TKR), but stated it was due to the arthritis and not the accident.   The carrier then denied the TKR.  The claimant had his IME who said it was related and it went to an EMA.  The EMA sided with the Employer/Carrier, the MCC of the TKR was the preexisting arthritis and not the accident.

Based on the claimant’s arguments however, the JCC sided with the claimant.   The medical/factual evidence was in favor of the Employer/Carrier, but the legal arguments estopped the denial.

First, the JCC pointed out you can not deny for MCC unless the preexisting condition required treatment before the accident or progressed to the point it needed treatment independent of the accident.

Second, and more important for this Tip, the Employer/Carrier treated the preexisting arthritis and never denied it within 120 days.  Always look at the post-surgery diagnosis on the operative report, consult with your attorney and determine whether you should issue a denial of anything unrelated or preexisting..  

Especially with knees, we often see the claimant have problems post-surgery, and a recommendation for injections.  The surgical report often has a diagnosis of chondromalacia, a fancy word for arthritis.  These injections, known under the names Synvisc, Orthovisc, Hyaluronic Acid, Viscosupplement, etc…are basically a lubricant needed to arthritis to lessen the bone on bone problems because the cartilage in the knee has degenerated.  If you provide these injections you are treating arthritis.  I have had many orthos say the accident is the MCC of the injections but not the Total Knee which often follows. 

You can provide the injection but then need to issue a denial of all future care AT THAT TIME, and not wait until a TKR is recommended.   If 120 days elapses after the injections you may have bought the TKR.

Be careful in your authorization letters to doctors about what you are authorizing.  

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Sincerely,
Morgan Indek | Partner