Why Do Defenses Matter?

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By: Rachel Perez Delgado, Associate, Jacksonville

With the end of another glorious football season in sight, now is a great time to remember why the best offense is a good defense. There are many defenses in workers’ compensation that are deemed waived if not timely raised. One recent JCC case, Burgess v. Environment Control of Jacksonville East and Continental Indemnity Co. Case # 17-025893, reveals exactly how important these defenses can be.

In Burgess, a consolidated case involving three separate dates of accident, the claimant injured multiple body parts, the most contentious being a right knee injury following a June 7, 2016 motor vehicle accident. The carrier authorized right knee treatment with an orthopedist who, after the first visit on October 31, 2016, diagnosed the claimant with a medial and lateral meniscus tear and osteoarthritis of the right knee. Unfortunately, the carrier failed to deny ongoing treatment for arthritis. In December 2016, the doctor recommended arthroscopic meniscectomy repair surgery. Following surgery, the physician prescribed a knee brace which he attributed directly to the underlying arthritis, and the carrier authorized the brace. Only after the claimant was recommended for a right knee total replacement surgery did the carrier deny treatment for arthritis.

The claimant subsequently filed Petitions for Benefits requesting (1) authorization of the total right knee replacement surgery, and (2) rental reimbursement in the amount of $100.00 per month since October 2017 and continuing as she moved to an apartment on the bottom floor to avoid stairs as recommended by her authorized treating physician. The employer/carrier first asserted major contributing cause as a defense to the claimant’s request for a total knee replacement in the Pre-Trial Stipulation, but failed to raise a medical necessity defense to the rental reimbursement request. The employer/carrier attempted to raise the defense of medical necessity at the Final Merits Hearing, but the Court ruled the defense was not timely raised. The JCC found that the carrier waived its right to both defenses, awarding claimant her petition for total knee replacement surgery and her petition for rental reimbursement.

This case highlights two huge pitfalls to avoid when it comes to defenses:

1. The 120 day rule: use it or lose it! Under Sierra v. Metropolitan Protective Services, as soon as the carrier authorizes treatment of a condition, the clock is ticking, and it has 120 days in which to deny compensability. If not affirmatively denied within 120 days, the Employer/Carrier loses its right to challenge compensability. In Burgess, once the carrier was put on notice of claimant’s pre-existing condition, a denial should have been issued for claimant’s osteoarthritis diagnosis. Additionally, the carrier should have confirmed after each request for treatment whether the treatment was related to the claimant’s pre-existing osteoarthritis or to the acute work related injuries. Because the Carrier failed to deny compensability of the claimant’s osteoarthritis within 120 days of treatment, in order to deny future treatment, the employer/carrier must show a break in the causal chain by either an independent intervening accident or a progression of the underlying, pre-existing condition to such an extent that it is now the major contributing cause of the need for treatment.

2. Medical Necessity: raise it or waive it! Under Fla. Stat. §440.13(3), a carrier has three days to respond to an authorized treating physician’s request for authorization for referral for medical treatment or 10 days if the request costs more than $1,000.00. Failure to respond within this timeframe results in a waiver of the carrier’s ability to raise the defense of medical necessity. In Burgess, although the carrier attempted to argue that there was no competent substantial medical evidence to support the request for rental reimbursement, it waived its ability to raise this challenge by not placing the defense of medical necessity on the pre-trial stipulation.

Cases like Burgess are difficult when they involve several moving parts. However, ensuring all proper defenses are timely raised is one of the keys to keeping claims moving in the right direction.