Case Law Update – May 2015


Terry Pearson v. BH Transfer, Fla 1st DCA Case No. 1D14-4560 (May 27, 2015)

In this case, the claimant filed a Petition for Benefits on July 5, 2013 seeking authorization of spinal fusion surgery recommended by his authorized treating physician, and attached the doctor’s note recommending the procedure. The E/C filed a Response to the PFB on July 30th, indicating the request for surgery was under review and subsequently denied it as not medically necessary. The E/C’s response to the request for surgery was more than 10 days after the request was made. At the trial level, JCC John Lazzara denied the claimant’s request for authorization of the surgery on the grounds that it was not medically necessary.

The First DCA reversed Judge Lazzara’s ruling. The Court held that pursuant to F. S. §440.13(3)(i), the carrier was required to respond to the request for medical treatment within the 10-day timeframe set forth in the statute. Because the carrier did not respond to the request within 10 days, it forfeited its right to contest the medical necessity of the surgery. As a result, the Court reversed and remanded back to the JCC to enter an order awarding the surgery. This was despite testimony of an EMA physician who stated the claimant was not a good candidate for surgery and “advised against it”.

Practical Application:

The Pearson case underscores and highlights the extreme importance of paying very close attention to the 10 calendar day deadline set forth in F. S. §440.13(3)(i), as well as the 3 business day deadline set forth in F. S. §440.13(3)(d). The 10 calendar day deadline applies to all written requests for medical treatment from an authorized treating physician “for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, x-ray examinations, or special diagnostic laboratory tests that cost more than $1,000.00”. The 3 business day time deadline applies to written requests for authorization for a referral for medical treatment made by an authorized treating doctor. This 3-day deadline presumably applies to any types of referrals not specifically named in the other statute.

Failure to respond to written requests from authorized healthcare providers in a timely manner will result in forfeiture of the right to contest or deny the request based upon medical necessity, regardless of the actual medical evidence.

Please feel free to contact any of our workers’ compensation attorneys listed below if you wish to discuss any of these cases and their application to your claims. You may reach us at the telephone numbers or e-mail addresses listed below:

Fort Lauderdale/East Coast Office: (954) 462-4304

Walter C. Wyatt, Partner – ext. 218

Robert M. Potter, III, Partner – ext. 222

St. Petersburg/West Coast Office: (727) 322-1739

Joseph A. Bayliss, Partner – ext. 306