Thought Leadership

The claimant sought authorization of a second opinion, as recommended by the treating physician. The claimant conceded that the doctor ultimately testified that the second opinion was not medically necessary. However, the claimant argued that the employer/carrier waived the defense of medical necessity under sections 440.13(3)(d) and (i).

The narrative report indicated that the patient was requesting a second opinion from another physician. This was also indicated on the completed DWC- 25 form. The adjuster testified that she received the narrative report and the DWC-25.

The adjuster did not communicate or respond to the referral from the doctor’s office. However, when the claimant made a good faith effort for the referral, the adjuster replied in an email that his request was denied based on Lombari v. Southern Wine and Spirits, 890 So. 2d 1128 (Fla. 1st DCA 2004). A petition for benefits was filed.

Section 44.13(3)(d) provides: “A carrier who fails to respond to a written request for authorization for referral for medical treatment by the close of third business day after receipt of the request consents to the medical necessity for such treatment.” Section 440.13(3)(i) provides, a claim for specialist consultation “is not valid and reimbursable unless the services have been expressly authorized by the carrier, unless the carrier failed to respond within 10 days to a written request for authorization.”

In Andino-Rivera v. Southeast Alt. Bev. Co., 132 So. 2d 1191 (Fla. 1st DCA 2014), the Judge of Compensation Claims denied a request for a referral upon finding that same was not medically necessary. The court reversed for the judge’s ‘s failure to assess whether the employer/carrier timely responded to the request in accordance with these statutory provisions.

The employer/carrier relies upon Lombardi, where the Judge of Compensation Claims concluded that the statute did not expressly provide for a second opinion. The court reversed, holding that a claimant may obtain a second opinion “upon an evidentiary showing that such as both reasonable and medically necessary.” The judge in the present case found that Lombardi and Andino-Riversa are in harmony and applicable to the instant claim. The Lombardi court simply determined that a second opinion is not expressly identified as a specific worker’s compensation benefit but, rather, an assessment for a second opinion is consistent with any recommended medical service. The Andino-Rivera court emphasized that the statutory provisions in 440.13(3)(d) and (i) result in a concession of medical necessity as to the recommended medical service. 

In this case, the claimant argued, and the judge agreed, that the recommendation for a second opinion was subject to both statutory requirements. Unfortunately, the employer/carrier failed to respond within three or 10 days and, therefore, the defense of medical necessity was waived. The case was affirmed by the First District Court of Appeal without written opinion.
 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 6, June 2023, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}