A Letter of Protection May Not Always Work

Wednesday, September 23, 2009 | 0

By Michael Rabinowitz

I've written about the three-day rule and the five-day rule located in section 440.13, but there is also the self-help provision that Employer/Carriers must worry about.  Now the First DCA just reinforced section 440.13(2)(c), otherwise known as the self help provision, which allows Claimant to seek medical treatment on her own, if said treatment is later found to be compensable and medically necessary.

What this means is to deny a claim or deny medical benefits carries higher risks.

In Parodi v. Florida Contracting Co., the employer/carrier (E/C) accepted claimant's accident and injuries as compensable.  That is until the E/C discovered claimant had prior accidents and they suspended all benefits.  Claimant subsequently obtained treatment on his own and filed for reinstatement of benefits as well as reimbursement of the medical bills he incurred and PTD benefits.

The judge of compensation claims (JCC) ultimately found that the treatment claimant obtained on his own was compensable and medically necessary as dictated by s. 440.13(2)(c), which allows claimant to seek such care should a specific request be made and the E/C be given a reasonable amount of time to respond.

However, the JCC did not allow the testimony of claimant's unauthorized doctors to be considered as evidence based on s. 440.13(5)(e) which bars any evidence from a doctor that is not an independent medical examiner (IME), expert medical adviser (EMA), or authorized physician.  This ruling makes absolutely no sense.  If a doctor's treatment is considered by a judge to be compensable and medically necessary, then shouldn't that doctor's testimony have to be considered as evidence?  The First DCA agreed and reversed the JCC's inconsistent ruling.

The reasoning by the court is important to understand.  The E/C does have a right to choose claimant's physicians.  However that right is connected to the obligation an E/C has to provide medical care timely.  If the E/C fails to meet that obligation it surrenders to the claimant the right to choose physicians (provided the care is compensable and medically necessary).

Please note that the court does make an exception for fraud cases and major contributing cause defenses.  So, if the E/C feels that claimant committed fraud or the accident is no longer the major contributing cause it can still deny the claim, and if proven correct the care obtained by claimant (even if medically necessary) would not be compensable.

What this means for your practice is obvious.  When denying a claim or a specific request for benefits, be sure you have solid evidence to support the denial.  Many times, claimant will request for a specialist that was never recommended by an authorized treating doctor.  Even though never recommended, it is possible an authorized doctor could find the specialty care to be medically necessary and compensable.  I've seen this happen after the denial, during the authorized doctor's deposition.  At that point, we lost.  The evidence will support claimant's unauthorized care.

Just because the care was not recommended, does not mean it is not compensable.  In essence, be sure to confirm before you deny.

More about Parodi

Again, the Parodi decision reinforces the self help section of chapter 440.  [see s. 440.13(2)(c)]  The stakes are now considerably raised with such a decision.

In that case the First DCA found that should claimant receive unauthorized treatment on his own, and prove that the treatment was compensable and medically necessary, then the doctors providing said treatment could testify in claimant's case in chief.

After talking with a mediator about the Parodi case, he declared that claimant's no longer need to use their IME anymore.  They can just go and find a doctor to provide treatment under a letter of protection (LOP).  While I see his point, I don't think the situation is as dire as that for employers and carriers.

Claimant still has to prove compensability via the major contributing cause standard and that the treatment for the injury is medically necessary.  Will simply getting an LOP from an unauthorized doctor work to prove such a case?  Sure.  But, in all cases?  That's a stretch.

For denials, a claimant is likely to do better under a LOP —if the doctor is willing to accept her under such conditions —than an IME.  Most IME doctors are known to the courts to have liberal or conservative biases anyway.  A long time treating doctor might have more weight.

But remember, if there already is an authorized treater willing to testify that the accident, injury, or subsequent treatment is not compensable or medically necessary, then that is difficult for a claimant to overcome; especially if the only doctor to treat her is one who is banking on getting paid by a favorable verdict.

Getting a LOP on every disputable issue is not practical for claimant nor is it favorable.  I still think employers and carrierss should be thoroughly investigate a claim before issuing a denial.  The self-help provision is just added exposure to consider should claimant be successful at trial.

======
Michael G. Rabinowitz is an an attorney at Banker Lopez Gassler in Tampa, Fla. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com/
======