Greetings, I am seeing more and more claimant attorneys push the issue of whether or not the 120 day letter was sent on total denials.  The argument is if the letter was not sent within 14 days of the initial provision of benefits, we waive the right later to deny compensability of the entire claim.

Below is my tip on the Babahmetovic case which started this line of argument in May of this year.

About a month ago, the 1^st DCA issued another ruling on the 120 day rule in Sierra v. Metropolitan Protective Services (1D15-0094) (Sierra).  In this case, the claimant, a security guard, was attacked by a knife-wielding assailant, and suffered minor physical injuries.  The claimant was seen at the ER, and was referred to a psychiatrist.  The E/C accepted the accident as compensable, and sent “the standard WC informational letters”, but no further action was taken at that time. 

In July 2012 (3 months after the WC accident), the claimant was in a serious non-work related MVA.  He also had a minor MVA as well. In August he filed a PFB for psych treatment, and he saw an authorized psych for the 1^st time in January, 8 months/240 days after the original accident.  In his depo, he admitted to pre-existing psych treatment before the WC assault.  Further psych treatment was denied because the claimant’s 2 MVA’s “served to break the chain of causation” between the accident and the need for treatment.  The JCC denied the psych treatment and the claimant appealed on the basis the E/C could not deny the care because 120 days had past.

The 1^st DCA  remanded the case back to the JCC with instructions to analyze the case under the 120 day rule more closely.  The DCA stated the E/C has the burden to show a “break in the causation chain” so that the psych injury is no longer the MCC of the need for the requested treatment.  However, they can not by operation of law show that the accepted psych injury never met the MCC standard in the first place because more than 120 days had elapsed.

In essence, after 120 days you can not state the injury never was the MCC (unless there is information you could not have discovered within 120 days with a reasonable investigation), but you can deny future treatment if there is a break in the chain and the accident does not remain the MCC.  This break in the chain could be a new accident or arguably returning to baseline per the treater.

The decision seems to imply the “standard WC informational letters” included the 120 day letter but its not clear.  Regardless, I do not think you need the 120 day letter to be filed to subsequently deny later that the accident does not remain the MCC.