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).

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