E/C Must Authorize Treatment for Non-compensable Condition

Friday, November 4, 2011 | 0

(Consider this post as my scary Halloween article for E/C’s.)

This issue is hotly debated now among carriers. What do you do when an authorized doctor requires claimant’s non-compensable condition be treated before the doctor will treat the compensable injury?  For example, the authorized workers' compensation surgeon will not perform surgery on the compensable back injury until a doctor clears claimant’s cardiac condition.

Does the employer/carrier (E/C) have to authorize cardiac care for a non-compensable condition just so the doctor can treat a compensable lumbar condition?

The unfortunate answer is “yes.”

The problem that many carriers have is the 2003 portion of Chapter 440 which reads as though the carrier does not have to pay for any non-compensable condition per the apportionment/merger statute. This would be an incorrect assumption.

While many are correct in that Section 440.15(5)(b) “apportions” out the pre-existing condition, that statute applies only to aggravations of pre-existing conditions and/or mergers of a compensable industrial accident with a pre-existing condition. 

For example, an E/C would not be expected to pay 100% of claimant’s lumbar condition if a doctor opines that 40% of her problem is related to a previous car accident and 60% is related to the industrial accident. The motor vehicle accident is apportioned out and the E/C has to pay only 60% of future treatment and wage loss.

However, the cases where a wholly separate pre-existing condition (like cardiac) prevents a compensable injury from being treated is governed by the “medical necessity” statute or Section 440.13(2)(a) which states the employer of a claimant who suffers an industrial injury must:

“Furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require.”

There are no cases after 2003 interpreting that Section 440.15(5)(b) allows carriers to deny this type of care. This is important because 440.15(5)(b) came into effect with the 2003 changes. However, there exists a lot of prior case law that interprets 40.13(2)(a) in favor of claimants and I think that the 1st District Court of Appeal would still uphold all of those prior cases due to my reasoning above.

Below, I’ve highlighted some of the cases,  and summarized what the court did in each scenario to give you an idea of how much exposure an E/C has in claims where claimant’s non-compensable condition stands in the way of treatment for a compensable injury:

• Mellon Sec. & Sound v. Custer, 687 So.2d 1372, 1373 (Fla. 1st DCA 1997) –  E/C must treat claimant’s obesity and hypertension so authorized doctors can treat Claimant’s compensable back injuries.
• City of Miami v. Korostishevski, 627 So.2d 1242, 1244 (Fla. 1st DCA 1993) – E/C must treat claimant’s cancer necessary to effectuate treatment of the compensable hernia.
• Brown v Steego Auto Parts, 585 So.2d 401, 402-403 (Fla. 1st DCA 1991) – E/C must authorize weight loss program to effectuate treatment of compensable lumbar condition.
• Urban v. Morris Drywall Spray, 595 So.2d 60 (Fla. 1st DCA 1991)  – E/C must treat claimant’s diabetic condition for effective treatment of compensable injuries; judge must make specific findings as to whether the diabetic treatment was a necessary adjunct to treatment of compensable injuries.
• Roth Bros. v. Spodris, 451 So.2d 947 (Fla. 1st DCA 1984) – What is probably the worst case scenarion for an E/C, the carrier must pay for claimant’s non-compensable total hip replacement as it would improve claimant’s back condition!