An issue comes up when there is a gap in treatment, resulting in a gap in indemnity benefits. The most common gaps I see are:
- Gap between the initial hospital visit (without restrictions being addressed) and the claimant being seen at a walk-in clinic.
- Gap between the date of accident and the first authorized medical
- Gap between the 1st doctor’s MMI date and the 1-time change doctor lifting MMI.
From a pure technical claims handling standpoint, you do not owe the indemnity during any of these gaps IF that is all the evidence/information you have at that point.
However, a doctor can subsequently state or testify retroactively that the claimant would have had restrictions during that gap window. Here’s how that can go badly for you:
A PFB gets filed seeking TPD from the date of accident and continuing, and the immediate response is all indemnity due has been paid. And that is typically true, the adjuster paid for everything but the gap period. At some point, in the doctor’s deposition or after a doctor conference, opposing counsel is able to get the authorized treating doctor to assign what the work restrictions should have been during the gap. Voila, we now owe that back indemnity, with penalties and interest…and hourly claimant attorney fees.
So…how do you handle these situations? I do agree with not paying the gap initially prior to a PFB. But once a PFB is filed, I think we need to look at the economics of not paying the gap period. If it is 2 weeks, it is almost always going to make sense to pay that gap, with penalties and interest if its late.
(You can always contact OC to see if they will waive Penalties and Interest. If you fail to pay P and I without an agreement though you will still owe an attorney’s fee)
When you get a PFB, in addition to checking AWW and the other items, look for gap periods. Think strategically and economically about your response, as it may make more sense to close the gap by paying in some instances.
Here is a link to a related Tip from 2021 that dealt with “temporary MMI” gaps when surgery is delayed to a personal health condition:
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Morgan Indek | Managing Partner