42
Fla. L. Weekly D1772aTop of Form

Workers’
compensation — Medical benefits — Judge of compensation claims erred in
determining that employer/carrier were not responsible for claimant’s
hospitalization expenses because E/C had determined that injury was not
compensable before the hospitalization where claimant was not advised of denial
of compensability until last day of hospitalization — An internal intent or
decision to deny a claim does not satisfy the requirement of advising claimant
— Although, under section 440.20(4), Florida Statutes, E/C were required to
pay all benefits due as if the claim had been accepted as compensable until the
date of denial, E/C retained the right to challenge other issues relevant to
claimant’s entitlement to benefits, including major contributing cause —
Because the services provided to claimant cost more than $1,000, E/C were
entitled to ten-day approval period unless emergency care was required —
Because hospitalization began and was completed in span of less than 10 days,
and E/C did not expressly authorize the hospitalization or fail to respond
timely to a written request for authorization, remand is required for JCC to
address E/C’s defenses and to determine whether hospitalization was for
emergency care

BEVERLY MATHIS, Appellant, v.
BROWARD COUNTY SCHOOL BOARD and THE SCHOOL BOARD OF BROWARD COUNTY, Appellees.
1st District. Case No. 1D16-3286. Opinion filed August 14, 2017. An appeal from
an order of Judge of Compensation Claims. Iliana Forte, Judge. Date of
Accident: March 2, 2015. Counsel: 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.

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 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 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 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 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.

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.)

__________________

*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.