FIRST DCA ADDS WRINKLE TO 120 DAY PAY AND INVESTIGATE RULE

The First District Court of Appeal has suggested that in order to deny benefits pursuant to a Major Contributing Cause (MCC) analysis, the employer/carrier may need to issue a 120 day pay and investigate letter in every case. Babahmetovic v. Scan Design Florida, Inc./Zenith Ins. Co. (Fla. 1st DCA, Oct 8, 2015).

The dispute in this case centered on the claimant’s request for a one-time change in treating provider. After a compensable low back injury, the EC authorized treatment and sent the claimant to an urgent care clinic. He was diagnosed with radiculopathy. The clinic indicated the claimant’s condition was related to his employment.

The urgent care clinic recommended a specialist, whereupon a neurosurgeon was authorized. The neurosurgeon likewise indicated the claimant’s condition was related to his employment, but executed a form indicating that 60% of the claimant’s condition was related to pre-existing degenerative disc disease and 40% was related to his workplace accident. The EC thereafter denied entitlement to all benefits. In its Notice of Denial, the EC indicated “total claim denied.” The parties agreed that the intent of this form was to suggest that there was never a compensable injury.

The claimant requested a one-time change in treating provider. His request was denied. The case proceeded to trial on the threshold issue of compensability. A determination of compensability would determine whether the claimant was entitled to his one-time change.

The JCC held that the claimant was required to first show a both a compensable accident and an injury before he would be entitled to any benefits. The neurosurgeon found that the pre-existing condition and the sprain associated with the accident combined to produce the need for medical care, but less than half of the need for medical care was attributable to the workplace event. The JCC held that the claimant’s accident was not the MCC of the need for medical care, and the claimant’s request for a one-time change was therefore denied.

The First DCA held that the JCC erred, and that the claimant was indeed entitled to his one-time change. The Court held that the JCC confused the existence and cause of the injury (i.e., compensability) with the existence and cause of the need for treatment. The court held that MCC applies at 2 different stages. First, the claimant’s employment must be the MCC of the compensable injury. When there is also a pre-existing condition the compensable injury must be the MCC of the need for treatment. The Court held that the facts in this case did not preclude compensability; the sprain was obviously compensable. The claimant therefore showed a compensable injury. There was nothing to suggest that the claimant’s sprain was caused by his degenerative disc disease.

Because the claimant suffered a compensable injury (the sprain), he was entitled to his one-time change in treating physician as an absolute right. Even though the EC denied entitlement to all benefits, the claimant had already shown that his sprain was related to his workplace activities.

In a concurring opinion, Judge Benton held that the 120 day pay and investigate rule would prevent the EC from denying entitlement to benefits. The EC paid for care and treatment at the urgent care clinic and with the neurosurgeon without invoking the 120 day pay and investigate provision. Judge Benton therefore held that even after securing the neurosurgeon’s opinion on MCC, the EC could not deny benefits based on its failure to invoke the 120 day pay and investigate provision, and had not notified the claimant in writing of its reservation of rights to deny compensability within 120 days of the first payment of benefits.

ANALYSIS: This case affirms another opinion from 2008 which held that the claimant is entitled to his one-time change even after MMI. In that case, the employer/carrier argued that because the claimant reached MMI, he was no longer in the course of treatment and could not have his one-time change. The First DCA disagreed.

When these 2 cases are considered together, the “take away” for the EC is that a claimant is entitled to his one-time change unless the EC has denied the occurrence of a workplace accident.

Perhaps the more important lesson from this case lies in the concurring opinion. Judge Benton held that the Court’s analysis need not have gone so far. In other words, the Court was not required to go through its lengthy analysis of MCC and causation of the claimant’s conditions. Judge Benton’s concurrence was that because the EC did not invoke the 120 day pay and investigate rule, it could never deny entitlement to benefits after authorizing care because the EC failed to notify the claimant in writing of its invocation of the 120 day investigation period.

This case suggests that the EC may wish to invoke the 120 day pay and investigate process in every claim so that the right to deny benefits after the initial authorization of care is preserved. The majority opinion does not suggest that this is mandatory, but Judge Benton’s concurrence may become the majority opinion in future cases and may become the applicable law.

CategoryCaselaw

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