By: Sean O’Neil, Associate, Jacksonville

It is hardly a unique situation– the claimant files a Petition for Benefits seeking an orthopedic referral or authorization of diagnostic testing while under the care of an authorized physician, but fails to attach the actual referral or office note.   Additionally, there are times when there is no referral for the treatment the claimant is requesting or it is not ripe.   When no supporting documentation is attached, the employer/carrier MUST file a Motion to Dismiss the claim for lack of specificity or it waives the defenses of specificity and ripeness, leading to statutory or hourly attorney’s fees if the benefit is later provided when the claim becomes ripe.

In Panzer, 150 So.3d 824 (Fla.1^st DCA 2014), counsel for the claimant filed a Petition for Benefits seeking authorization of a second opinion with a shoulder surgeon.  At the time the petition was filed, the claimant was under the care of an authorized orthopedic surgeon to treat his right shoulder injury. More than a year after the filing of the petition seeking the second opinion, the employer/carrier authorized the benefit.  It was not disputed that the claimant did not attach to his petition a written recommendation from his authorized orthopedist for the second opinion.  It was also undisputed that the employer/carrier did not file a Motion to Dismiss the petition based on lack of specificity OR respond to the petition within 30 days.

The Panzer Court held that for purposes of determining attorney fee entitlement, by later providing the claimant the second opinion orthopedic, the employer/carrier effectively either established that the benefit requested was ripe, due and owing at the time the petition was filed or that the employee had employed an attorney in the successful prosecution of the claim.  The Court went on to explain that an attachment to the petition with a referral for a second opinion would have established ripeness and satisfied the specificity requirement, but the employer/carrier’s failure to object to the absence of the referral attached to the petition is deemed a waiver of both legal defenses. Therefore, employer/carrier’s failure to respond to or file a Motion to Dismiss for Lack of Specificity operated as a denial of  every claim and opposing counsel was awarded a carrier paid fee for securing the second opinion benefit requested.

In conclusion, the next time you receive a Petition for Benefits requesting treatment that was not recommended by an authorized provider and does not have any documentation from the medical provider attached to the petition in support of the claim, a Motion to Dismiss for Lack of Specificity should be filed by your defense counsel to protect the employer/carrier from potential future attorney fee exposure.