recognizing that an E/C had waived its right to challenge compensability but “retained the right to challenge other issues relevant to Claimant’s entitlement to benefits, including major contributing cause”
How later courts described this case
- recognizing that an E/C had waived its right to challenge compensability but “retained the right to challenge other issues relevant to Claimant’s entitlement to benefits, including major contributing cause”
Written by the judges who cited it.
The opinion
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
BEVERLY MATHIS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-3286
BROWARD COUNTY SCHOOL
BOARD and THE SCHOOL
BOARD OF BROWARD
COUNTY,
Appellees.
_____________________________/
Opinion filed August 14, 2017.
An appeal from an order of Judge of Compensation Claims.
Iliana Forte, Judge.
Date of Accident: March 2, 2015.
Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
Kimberly J. Fernandes of Kelley Kronenberg, P.A., Tallahassee, for Appellees.
KELSEY, J.
Claimant’s foot injury was determined to be non-compensable because she
failed to meet her burden of proving that the injury occurred in the course and scope
of employment or arose out of her employment. She does not appeal that ruling.
Rather, she argues that the Employer/Carrier (E/C) were obligated to pay for her
hospitalization that occurred before the E/C denied compensability and after the E/C
began providing benefits under the 120-day rule of section 440.20(4), Florida
Statutes (2014). The E/C argue that they were not responsible for the hospitalization
expenses because they had decided to deny compensability before the hospitalization
occurred, even though they did not file a notice of denial until the hospitalization
ended. The JCC accepted the E/C’s argument, but we reverse on that issue. However,
because the hospitalization began and was completed in a span of less than 10 days,
and the E/C did not expressly authorize the hospitalization or fail to respond timely
to a written request for authorization, we remand for the JCC to address the E/C’s
defenses and to determine whether the hospitalization was for emergency care within
the meaning of the governing statutes.
Background Facts.
The background facts are not in dispute. Claimant, a custodian who is diabetic,
reported to her Employer on March 5, 2015, that a nail or tack went through her right
shoe the previous evening, and that her right foot was swollen and painful. One of
the Employer’s workers’ compensation nurses spoke with Claimant at length on
March 5, and referred her to Dr. Kerr, whom Claimant saw that day. The E/C
invoked the 120-day rule, asserted causation and other defenses including
entitlement to an evidentiary hearing before AHCA to resolve provider
reimbursement issues, and continued paying Claimant’s salary in lieu of paying
temporary compensation benefits.
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Dr. Kerr’s notes reflect that on March 5, one day after the alleged foot
puncture, Claimant already had an abscess on the foot, which was later confirmed to
be a staph infection. Dr. Kerr’s opinion was that such an infection takes more than
one day to develop and could not have developed from the night before. Within four
days, by March 9, the staph infection had grown worse. Dr. Kerr again advised
Claimant that she did not think the infection came from the reported incident. She
prepared a DWC-25 form requesting consult through the hospital emergency room
for IV treatment. Claimant went to the emergency room on March 9. A podiatrist at
the hospital operated on the abscess on March 11, delayed closure of the wound until
March 15, and discharged Claimant on March 17. The hospital bill was just over
$116,000.
The claims adjuster had spoken to Claimant on March 5, and concurred with
the authorization of Dr. Kerr. The adjuster received Dr. Kerr’s written referral to the
hospital within ten days prior to denying the claim on March 17, but the adjuster did
not authorize the hospitalization and did not find out about it until March 10. Neither
the hospital nor the podiatrist notified the E/C or requested prior authorization for
treatment. The E/C later asserted that the adjuster had determined on March 5 that
the injury was not compensable, although the notice of denial as to compensability
was not filed until March 17, the same day Claimant was discharged from the
hospital. The notice of denial asserted that Claimant’s injury was personal and not
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causally connected to her employment, based on lack of evidence of causation and
Dr. Kerr’s office note regarding the presence of a well-developed infection only one
day after the alleged accident.
Pay And Investigate.
The “pay-and-investigate” rule of Subsection 440.20(4), Florida Statutes
(2014), provides as follows (emphasis added):
If the carrier is uncertain of its obligation to provide all benefits or
compensation, the carrier shall immediately and in good faith
commence investigation of the employee’s entitlement to benefits
under this chapter and shall admit or deny compensability within 120
days after the initial provision of compensation or benefits as required
under subsection (2) or s. 440.192(8). Additionally, the carrier shall
initiate payment and continue the provision of all benefits and
compensation as if the claim had been accepted as compensable,
without prejudice and without admitting liability. Upon
commencement of payment as required under subsection (2) or s.
440.192(8), the carrier shall provide written notice to the employee that
it has elected to pay the claim pending further investigation, and that it
will advise the employee of claim acceptance or denial within 120 days.
A carrier that fails to deny compensability within 120 days after the
initial provision of benefits or payment of compensation as required
under subsection (2) or s. 440.192(8) waives the right to deny
compensability . . . .
The E/C had three options upon being notified of the claim: pay the claim,
pay and investigate, or deny the claim. See Bynum Transp., Inc. v. Snyder, 765 So.
2d 752, 754 (Fla. 1st DCA 2000). A claimant’s first authorized visit to a physician
begins the 120-day period. Osceola Cty. Sch. Bd. v. Arace, 884 So. 2d 1003, 1005
(Fla. 1st DCA 2004). To accept or deny a claim, the E/C must “advise the employee
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of claim acceptance or denial.” City of Ocoee v. Trimble, 929 So. 2d 687, 690 (Fla.
1st DCA 2006). A merely internal intent or decision to deny a claim does not satisfy
the requirement of advising the employee, and therefore the denial here occurred on
March 17 when the E/C advised Claimant of the denial. We reverse the JCC’s ruling
to the contrary. Under subsection 440.20(4), the E/C were required to pay all benefits
due “as if the claim had been accepted as compensable” until the date of denial.∗
However, the E/C retained the right to challenge other issues relevant to Claimant’s
entitlement to benefits, including major contributing cause. Trimble, 929 So. 2d at
689-90; see also Sch. Dist. of Hillsborough Cty. v. Dickson, 67 So. 3d 1080, 1083
(Fla. 1st DCA 2011) (holding section 440.20(4) does not preclude E/C from
challenging claimant’s entitlement to benefits on other grounds particularly
including major contributing cause).
Emergency Care.
The pay-and-investigate rule does not resolve this case, however. The E/C
were entitled to an opportunity to give prior authorization for the care under at least
two statutory provisions. First, a referral from one health care provider to another
∗
It should be noted that prior to October 1, 2003, subsection 440.20(4) permitted an
E/C the option of paying some benefits while they investigated the claim. Effective
that date, however, the subsection was amended to its current language mandating
that the carrier “initiate payment and continue the provision of all benefits and
compensation as if the claim had been accepted as compensable.” Ch. 03-412, § 24,
at 3934, Laws of Fla.
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requires prior authorization under section 440.13(3)(c), Florida Statutes (2014).
Second, because the services provided to Claimant cost more than $1,000, the E/C
were entitled to a ten-day approval period under section 440.13(3)(i), Florida
Statutes (2014), and the emergency-care exception to that ten-day period. The E/C
are entitled to this approval period notwithstanding having elected to pay and
investigate. This section provides as follows (emphasis added):
(i) Notwithstanding paragraph (d) [giving a carrier three days to
respond to requests for treatment], 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 that the
department identifies by rule is not valid and reimbursable unless the
services have been expressly authorized by the carrier, unless the carrier
has failed to respond within 10 days to a written request for
authorization, or unless emergency care is required. The insurer shall
authorize such consultation or procedure unless the health care provider
or facility is not authorized, unless such treatment is not in accordance
with practice parameters and protocols of treatment established in this
chapter, or unless a judge of compensation claims has determined that
the consultation or procedure is not medically necessary, not in
accordance with the practice parameters and protocols of treatment
established in this chapter, or otherwise not compensable under this
chapter. Authorization of a treatment plan does not constitute express
authorization for purposes of this section, except to the extent the
carrier provides otherwise in its authorization procedures. This
paragraph does not limit the carrier’s obligation to identify and disallow
overutilization or billing errors.
The ten-day approval period applies for services that cost more than $1,000 and other
designated specialty services, “unless emergency care is required.” See also
§ 440.13(3)(b), Fla. Stat. (requiring emergency care providers to notify carrier by
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the close of the third business day after rendering emergency care). No written
request for authorization in compliance with the statute was made here, no
emergency care notice was given, and the E/C did not expressly authorize the
treatment. Further, the E/C’s March 17 denial was within ten days of the date the
adjuster testified she received the written referral from Dr. Kerr for the
hospitalization. Unless the emergency care exception applied, as Claimant argues it
does, the E/C are not liable for the hospital bill.
The JCC found that hospitalization was considered necessary to treat
Claimant’s infection, but these findings do not resolve whether it was “emergency
care” within the meaning of section 440.13(3)(i). We have held previously that the
emergency-care exception to the ten-day rule is triggered when the care is provided
for a compensable injury, is medically necessary, and constitutes “emergency”
care. Cespedes v. Yellow Transp., Inc., 130 So. 3d 243, 252 (Fla. 1st DCA 2013)
(relying on section 395.002, Florida Statutes (2005), which defines “emergency
services and care” and “emergency medical condition”). An emergency medical
condition is defined as follows:
(a) A medical condition manifesting itself by acute symptoms of
sufficient severity, which may include severe pain, such that the
absence of immediate medical attention could reasonably be expected
to result in any of the following:
1. Serious jeopardy to patient health, including a pregnant woman or
fetus.
2. Serious impairment to bodily functions.
3. Serious dysfunction of any bodily organ or part.
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Cespedes, 130 So. 3d at 254 (quoting § 395.002(9)(a), Fla. Stat. (2005)).
The care here is considered compensable under the 120-day pay-and-
investigate rule because the statute requires benefits to be provided during the
investigatory period “as if the claim had been accepted as compensable.”
§ 440.20(4), Fla. Stat. The JCC here did not, however, address the E/C’s other
defenses or the remainder of the analysis under Cespedes, including whether the
hospitalization met the definition of “emergency services and care” under section
395.002 as referenced in section 440.13(1)(e). We remand for further proceedings
on these issues.
Conclusion.
We reverse the JCC’s conclusion that the E/C’s decision to deny the claim on
March 5, not communicated to Claimant until March 17, was sufficient to avoid
liability for the hospital bill. However, we remand for further proceedings on the
E/C’s other defenses and whether the treatment constituted emergency care.
REVERSED and REMANDED for further proceedings.
WETHERELL and MAKAR, JJ., concur.
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