Jeffrey P. Gale, P.A. // Florida Workers’ Compensation: Establishing Medical Necessity by Operation of Law (Statutes 440.13(3)(d) and (i)

Workers’ compensation employers and carriers (“E/C”) “shall furnish to the employee … medically necessary remedial treatment, care and attendance….” See s. 440.13(2)(a), Florida Statutes.

440.13(1)(k) defines “medically necessary” as follows:

“Medically necessary” or “medical necessity” means any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient’s diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe. The service must not be of an experimental, investigative, or research nature.

Unless medical necessity is established by operation of law, it is the Claimant’s burden to prove medical necessity. Medical necessity by operation of law arises if E/C fails to respond to a written request from an authorized health care provider for additional medical care or services within the time periods allowed in sections 440.13(3)(d) and (i). See Elmer v. Southland Corp. 17-11, 5 So.3d 754, 756 (Fla. 1st DCA 2009); see also Pearson v. BH Transfer, 163 So. 4d 1280 (Fla. 1st DCA 2015) (The medical provider’s written request can be attached to a Petition for Benefits.)  Section 440.13(3)(d) applies only to requests from doctors for referrals to other doctors and not to requests by employees. Wal Mart Stores, Inc. v. Mann, 690 So.2d 649 (Fla. 1st DCA 1997). When one health care provider refers an employee to another health care provider for treatment, section 440.13(3)(d) applies. See Wuesthoff Mem’l Hosp. v. Schmitt, 694 So.2d 145, 145 (Fla. 1st DCA 1997).

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. All such requests must be made to the carrier. Notice to the carrier does not include notice to the employer.

Section 440.13(3)(i) applies to requests “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 that the department identifies by rule….”

Under sections 440.13(3)(d) and (i), an employer or carrier “forfeits the right to contest” the medical necessity of an authorized doctor’s referral for (additional) medical treatment, unless the employer or carrier responds to the authorized doctor’s written request for a referral within the time allowed. Elmer v. Southland Corp. 17-11, 5 So.3d 754, 756 (Fla. 1st DCA 2009). Although a carrier is not required to grant the request for a referral within the times specified in sections 440.13(3)(d) (three days) and (i) (ten days), it must respond to each written request within the time prescribed. As an incentive for prompt responses, the carrier is deemed to agree to the medical necessity of the referral, in the absence of a timely grant or denial. See id.

While medical necessity may be established by forfeiture, any medical care provided under section 440.13 must be medically necessary as a result of a compensable injury. Id., Elmer. Accordingly, even if “E/C waives its right to question the medical need for requested treatment, it may yet contend that the claimant’s compensable injury is not the reason treatment is needed.” See City of Panama City v. Bagshaw, 65 So. 3d 613, 616 (Fla. 1st DCA 2011).

Interestingly, the compensability of an injury can also be established by forfeiture. This is the topic of a recent blog we did on the subject: “Trial Memo on Florida’s Workers’ Compensation ‘”120-Day Rule”‘.  In essence, an E/C which pays compensation or intentionally provides benefits, but fails to deny compensability within the 120 days provision set forth in section 440.20(4), Florida Statutes, waives the right to contest that an injury arose out of, and occurred within the course and scope of the claimant’s employment. See North River Ins. Co. v Wuelling, 683 So. 2d 1090 (Fla. 1^st DCA 1996) (en banc).

These various time limits show that Florida workers’ compensation law is a minefield of technicalities backed by major consequences.

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