Month: May 2015

When a Carrier Fails to Respond to a Request for Surgery

The following fact pattern occurs with some frequency in Florida workers’ compensation cases: an authorized doctor recommends surgery, the doctor requests authorization for the surgery in writing to the insurance company, and the insurance company fails to respond to the doctor’s written request within 10 days. The carrier later denies the surgery because it feels the surgery is not medically necessary. Under the fact pattern laid out above, the carrier may have lost the ability to contest the medical necessity of the procedure under F.S. 440.13(3)(d) and (i). Case law has developed under these statutes (which must be read together) that stands for the following general proposition: a carrier must respond to a request for surgery within 10 days or it loses the ability to contest the medical necessity of the surgery.[1]

[alert type=”info” close=”true”]The insurance company does not necessarily have to authorize the requested treatment within 10 days, but it must respond to the request for treatment within 10 days.[2][/alert]

Section 440.13(3)(d) provides in relevant part provides:

A carrier must respond, by telephone or in writing, to a request for authorization by the close of the third business day after receipt of the request. A carrier who fails to respond to a written request for authorization for referral for medical treatment by the close of the third business day after receipt of the request consents to the medical necessity for such treatment. (Emphasis added)

Section 440.13(3)(i) provides in relevant part:

Notwithstanding paragraph (d), a claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, X-ray examinations, or special diagnostic laboratory tests that cost more than $1,000 and other specialty services…is not valid and reimbursable unless the services have been expressly authorized by the carrier, or unless the carrier has failed to respond within 10 days to a written request for authorization, or unless emergency care is required.

While treatment recommended must be reasonable and medically necessary, it must also be as a result of a compensable injury. Therefore, even if medical necessity is established, the insurance company may still challenge the requested treatment on the lack of causal connection between the injury and treatment. In other words, even if the insurance company waives its right to question the medical need for the requested treatment, it may yet contend the claimant’s compensable injury is not the reason for the treatment.[3]

The statutes discussed above can be very fact specific. This post does not suggest this applies in all scenarios. For example, if the requested treatment is not in accordance with practice parameters and protocols, the statute may not apply to the requested treatment. If you have questions about your specific facts and circumstances regarding a request for authorization for surgery, or other requested medical treatment, contact our office. Workers’ compensation cases can be extremely complex. Our firm has represented injured workers in Florida since 1989. Our workers comp attorneys in Tampa, Florida are available to speak with you today. Our firm offers free in-home consultations and there is never a fee charged unless we recover benefits on your behalf.

[1] Elmer v. Southland Corp./7-11, 5 So. 3d 754 (Fla. 1st DCA 2009).

[2] Id.

[3] City of Panama v. Stephanie Bagshaw, 65 So. 3d 615 (Fla. 1st DCA 2011).

Repetitive Use Injuries in Florida

Workers’ compensation repetitive use injuries in Florida represent a subset of on-the-job injuries relating to specific wear and tear on the body due to specific job functions required to perform the particular job. Occupational repetitive stress injuries comprise more than one hundred different types of job-induced injuries and illnesses resulting from wear and tear on the body. Repetitive use injuries are one of the fastest growing workplace injuries, and can result any time there is a mismatch between the physical requirements of the job and the physical capacity of the human body. Specific risk factors that can cause RSIs include repetitive motion, force, awkward posture, heavy lifting, or a combination of these factors.[1]

repetitive-use-injuries-in-floridaImagine the following hypothetical worker: John is employed as a service foreman for a Fire Sprinkler Installer. As part of his job, John typically stands on ladders to install/replace fire sprinklers. This job function requires him to keep his neck in a 45° angle tilted to the side while he used tools to perform the installation/replacement work. If John begins experiencing significant pain in his neck as a result of the job related positioning of his neck. Would this type of injury be compensable? Possibly; we will analyze the preceding fact pattern under the following legal standard for workers’ compensation repetitive use injuries in Florida.

In Florida, an injury need not occur as a result of the single traumatic event in order to be compensable under the Workers’ Compensation Act. In Festa v. Teleflex, Inc. 382 So.2d 122, 124 (Fla. 1st DCA 1980), the court set forth a three – pronged test required to show compensability for repetitive trauma and exposure injuries:

  1. Prolonged exposure. There is no minimum temporal threshold, and even a period of exposure a short as two weeks may be sufficient. J & J Enterprises v. Oweis, 733 So.2d 1149, 1150 (Fla. 1st DCA 1999)
  2. The cumulative effect of which is injury or aggravation of a pre-existing condition.
  3. The employee has been subjected to a hazard greater than that to which the public is exposed. This prong has now been determined to be a alternative theory for compensability. Injured workers need only show a series of occurrences, the cumulative effect of which is injury. The law does not require injured workers to show, additionally, that the job subjected them to a hazard greater than that to which the public is exposed. Rodriguez v. Frito – Lay, Inc. 600 So.2d 1167, 1172.
  4. In 1992, the Florida Supreme Court added a fourth prong to the test:For a pre-existing condition to be compensable, it must be exacerbated by some non—routine, job-related physical exertion, or by some form of repeated physical trauma. University of Florida v. Massie, 602 So. 2d 516, 524 (Fla. 1992).

The hypothetical case outlined above is analogous to the facts in Lousiana Pacific Corp. v. Harcus, 774 So.2d 751 (Fla. 1st DCA 2000). In that case, the court agreed that the claimant had established the compensable accident under a repeated trauma theory. In that case, the 49-year-old claimant worked in various position that the employer, sawmill, most recently as a millwright. Every position he held during his 24 – year career involved arduous physical labor, including heavy lifting on daily basis. During March 1998, claimant began experience pain in his hip and leg. He did not identify any specific incident that caused the pain, but rather referred to many of his job duties that involved heavy physical labor, and he reported that the pain developed gradually. After learning from his family physician that the pain related to a back condition, claimant sought compensation benefits. The carrier had completely denied the claim, including the request for medical treatment. In resolving the claim for compensation benefits, the JCC found the stenosis compensable under a repetitive trauma theory based on claimant’s and his physician’s testimony, and concluded that the claimant’s heavy lifting and repetitive bending while working for the employer over the course of more than 20 years cause the stenosis and resultant disability arising in March 1998. He also ruled that the repetitive trauma was the major contributing cause of the stenosis. The DCA stated the following:

“…. In our judgment, there was, under the circumstances, no burden on the claimant to prove that the stenosis was the major contributing cause of the disability, because section 440.09 (1) (b), Florida Statutes (1997) does not apply under the facts of this case. The stenosis is not a pre-existing condition within the meaning of section 440.09 (1)(b), and there was only one cause, rather than multiple causes, of claimant’s disability and need for treatment…. The record before us discloses, and the JCC below, implicitly found by granting benefits, that the employment – related injury was the only cause of the claimant’s disability. Because there was only one cause, the burden imposed by the elevated major – contributing cause standard is inapplicable. As this court observed in Closet – Maid v. Sykes, 763 So.2d 377 (Fla. 1st DCA 2000) , the term major contributing cause requires the existence of two or more causes and means that the workplace accident contributes more to the disability need for treatment than any other single cause. Although it is true that the JCC found that the major contributing cause of claimant stenosis was the repetitive work activity, this finding was unnecessary, because it implies that more than one cause combined bring about the disability…. The dissent, moreover, disregards the somewhat unique nature of repetitive trauma injuries, in which, as stated, the disabling condition does not immediately arise following a single incident, but gradually occurs following a cumulative series of incidents over an extended time frame…”

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If you have questions regarding repetitive use injuries in Florida, or any other Florida workers’ comp question, contact one of our attorneys for a free consultation.

[1] https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=SPEECHES&p_id=206

 

Florida Work Comp Fraud by Omission; A Case Study

Workers’ compensation fraud is something aggressively pursued by employers and workers comp insurance companies in Florida. Whether or not it happens as much as some would have the public to believe is up for debate—see the Frontline specialThe Myth of Workers’ Compensation Fraud”. Even if it’s not as rampant as the narrative advanced by business and insurers, it’s a very real legal concept in Florida. Immediately after a claim is initiated with an insurer, a “fraud statement” is provided to an injured worker to sign and acknowledge receipt of the rule. This document is typically sent with the initial informational packet.  Workers’ compensation fraud is not only punishable by criminal penalties, but an injured worker who commits fraud is barred from receiving workers’ compensation benefits. Overt fraud is clear to spot. If a person is out of work receiving temporary total disability benefits, yet working for another employer, it’s fraud. Clear as day. The more difficult concept to grasp is how an omission to a doctor about past treatment can be workers’ compensation fraud.  This post will focus on omissions, i.e. failing to report, prior injuries/conditions to physicians as a basis of Florida work comp fraud, and a recent case study involving this issue.

work-comp-fraud-in-floridaThe basic Florida work comp fraud rule: to establish the “fraud” defense, the employer/carrier must prove by a preponderance of the evidence that the Claimant knowingly or intentionally engaged in one of the acts provided in section 440.105, Florida Statutes, for the purpose of securing workers’ compensation benefits.[1]

Imagine injured worker Sally. Sally injures her mid and low back while lifting a box in November. The workers comp insurance carrier authorizes Dr. A for treatment. She treats with Dr. A for her low back, but does not mention to Dr. A that she has had two recent accidents—one months prior to the November workers comp accident and one immediately after the November  work comp accident—both of which she sought treatment for her low back. Sally completes an intake questionnaire at Dr. A’s office and fails to mention the accidents or prior treatment.  The insurance company denies the workers’ compensation claim on the basis the injured worker committed fraud, and the matter goes to a final merits hearing. On the facts generally outlined above, the judge held the following:

“When considering the evidence in its entirety, I find that by failing to inform Dr. [A] of her May 13, 2013 altercation/motor vehicle accident, which resulted in chiropractic treatment for low back pain, or of her December 19, 2013 motor vehicle accident, which also resulted in chiropractic treatment for low back pain, Claimant knowingly and intentionally misrepresented her medical history to obtain workers’ compensation benefits. Accordingly, she is barred from receiving workers’ compensation benefits for the instant date of accident.”[2]

In this case, the judge held the omission by the injured worker was in fact workers’ compensation fraud under the statute. As such, all benefits were denied. While Florida work comp fraud claims are extremely fact specific, the case outlined above demonstrates how fraud can be not only something an injured workers does, but fails to do. This can create numerous opportunities for an injured worker to commit fraud when discussion prior medical history with their workers’ compensation physicians, completing intake questionnaires, etc.  If you have questions regarding Florida work comp fraud by omission, or any other Florida workers’ comp question, contact one of our attorneys for a free consultation.

[1] Smith v. Target; OJCC Case #: 13-029085MRH (Decision issued March 2, 2015)

[2] Id.

Workers’ Compensation Immunity in Florida

Injured workers who become frustrated with the limitations associated with the Florida Workers’ Compensation system often have questions with regard to whether they are permitted to bring a separate negligence action against the employer, and thus go beyond the benefits available under the Florida Workers’ Compensation Act. The reason why an injured worker might wish to go beyond the benefits available under the workers’ compensation act are obvious – under the Florida Workers’ Compensation act, an individual has no right to select his or her own physicians, is never paid for all of his or her lost wages, is unable to bring a claim for pain/suffering/loss of enjoyment of life/loss of consortium, cannot force an employer/insurance carrier to pay a lump sum to compensate him or her, and experiences countless other limitations on their right to full redress of their injuries. Unfortunately, except in extraordinarily rare instances, the injured worker is indeed limited to the benefits available under the Florida Workers’ Compensation act.

One of the most fundamental principles of the workers’ compensation law (contained in Florida Statute 440.11) is that an employer who purchases a policy of workers’ compensation insurance enjoys immunity from a separate negligence action (Florida workers compensation immunity). More specifically, in exchange for no – fault coverage for injuries (an injured worker need not prove negligence on the part of the employer in order to qualify for workers’ compensation benefits), the employee relinquishes – under almost all circumstances – the right to bring any type of claim, other than a workers’ compensation claim, for his injuries.

The provisions of Florida Statute 440.11 are as follows:

  1. 11 Exclusiveness of liabilityflorida-workers-compensation-immunity

(1)   The liability of an employee or prescribed in statute 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employee or to any third – party tortfeasor and to the employee, the legal representative thereof, husband or wife, parents, dependence, next of kin, and anyone otherwise entitled to recover damages for such employer at law or in admiralty on account of such injury or death, except as follows:

(a)   If an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof, in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death. In such action, the defendant may not plead as defense that the injury was caused by negligence of a fellow employee, that the employee assume the risk of the employment, or that the injury was due to the comparative negligence of the employee.

(b)   What employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer’s actions shall be deemed to constitute an intentional tort, and not an accident. Only when the employee proves, by clear and convincing evidence, that:

  1. The employer deliberately intended to injure the employee; or
  2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent in the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

As set forth above, the only way to get beyond this standard workers’ compensation immunity is under circumstances where the employee is able to prove, by clear and convincing evidence, all three of the following elements:

  1. The employer engaged in conduct that the employer knew, based on similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee; and
  1. The employee was not aware of the risk because the danger was not apparent; and
  1. The employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

In the recent case of Figueroa v. Delant Construction Co., 118 So.3d 272 (Fla. 3DCA 2013), the court made the following significant comments:

“In the instant case, the record conclusively demonstrates that there were no prior similar accidents or a specific warning explicitly identifying a known danger, which would thereby establish that Master Construction (the employer) engaged in conduct it knew was virtually certain to result in injury or death to Figueroa (the claimant). Further, the unrefuted evidence demonstrates that the danger or risk was apparent to Figueroa, and that there was no concealment or misrepresentation by Master Construction. Therefore, as Figueroa cannot establish as a matter of law that the intentional tort exception to workers’ compensation immunity is applicable, the trial court properly entered final summary judgment in favor of Master Construction.”

As can be seen from the above information, the standard for getting beyond Florida workers compensation immunity is extraordinarily high. This high standard is in place for a very specific reason – employers want the certainty of knowing that any and all injuries sustained by their employees will come under the Florida Workers’ Compensation system, and that they will not be exposed – except under the most unusual of circumstances – to a negligence action in circuit court before a judge or jury.

At Christopher J Smith, P. A., we are fully committed to the representation of injured workers to ensure they are promptly provided with all the benefits to which they are entitled. If you have questions for a Tampa workers’ compensation attorney regarding any aspect of your Florida workers’ compensation case, please do not hesitate to contact us.