Lately I have had a few cases where the claimant sought treatment on their own outside of the WC system, so I thought it would be a good reminder of how that is handled in the Florida WC system.
If a claimant has surgery on their own or treats with a psychiatrist outside of WC, the first reaction is “not our problem”. Not so fast, it can come back to bite us.
In general, under 440.13(c) if the claimant requests a specific treatment or provider, the carrier has a reasonable time to provide the treatment, and if they fail to do so, the claimant can seek the treatment on their own. The claimant can then ask a Judge to make the carrier pay for it, if the claimant can prove it was medically necessary and causally related.
A couple of things have to occur:
- The claimant has to request it specifically from the E/C first before seeking the treatment.
- The E/C has a reasonable time to respond (unless its an emergency). How long is reasonable? Well, that will be up to the Judge.
- Even so, that unauthorized doctor’s opinion is not admissible (yet anyway), so the claimant has to be obtain an IME or have the authorized treater say that the unauthorized treatment was medically necessary and causally related to our accident. We can of course fight it with our own IME or the authorized treater, and that may lead to the Judge appointing an EMA tie-breaker doctor.
- If the Judge rules for the claimant and we have to pay for the unauthorized treatment, paying for it makes that unauthorized doctor’s opinion retroactively authorized on things such as work status (Parodi case).
- However, the E/C retains the right to pick a new doctor moving forward to continue to provide that treatment. You are not stuck with that formerly unauthorized doctor, you get to pick the doctor for future care (Romano case).
So when you are evaluating possible exposure, always take into account the possibility of having to pay for any unauthorized treatment, and possibly getting stuck with a different work status from the unauthorized doctor. Here are the relevant statute sections.
440.13 (c) If the employer fails to provide initial treatment or care required by this section after request by the injured employee, the employee may obtain such initial treatment at the expense of the employer, if the initial treatment or care is compensable and medically necessary and is in accordance with established practice parameters and protocols of treatment as provided for in this chapter. There must be a specific request for the initial treatment or care, and the employer or carrier must be given a reasonable time period within which to provide the initial treatment or care. However, the employee is not entitled to recover any amount personally expended for the initial treatment or care unless he or she has requested the employer to furnish that initial treatment or service and the employer has failed, refused, or neglected to do so within a reasonable time or unless the nature of the injury requires such initial treatment, nursing, and services and the employer or his or her superintendent or foreman, having knowledge of the injury, has neglected to provide the initial treatment or care.
440.13(5) (e) No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.
Morgan Indek | Managing Partner