120-day rule image

Put it in Practice May 2023: Monthly Tips for Florida WC Professionals

Firm News

Navigating 120-Day Minefields

Claimants’ lawyers love to play “gotcha” with compensability issues.  To them, it does not matter if the condition in question is related to the work accident.  Instead, the focus is whether the carrier, through inaction, passively accepted compensability of a condition that was clearly not compensable.  To properly handle our claims, we must take affirmative steps to avoid waiver and the acceptance of non-compensable conditions.

At its most basic, the 120-day rule permits us to provide care for an injury or condition for up to 120 days without prejudice to our right to deny compensability.  The first question becomes:  When does the 120-day period begin?  Well, it begins with the initial authorization of treatment. That first date of service is the start date for the 120-day period, which may apply to both initial compensability and to individual conditions or diagnoses that arise following the compensable accident.

  • Example:  Claimant reports a low back injury and we authorize a walk-in clinic.  The walk-in clinic diagnoses a back strain.  We provide care. 
  • Later, the walk-in clinic orders an MRI.  The MRI reveals “stenosis and osteoarthritis at L4-5.” The carrier fails to enter a DWC-12 denying this clearly pre-existing condition.  Instead, the carrier continues to provide care with the walk-in clinic who then refers the claimant to an orthopedist.   
  • The orthopedist diagnoses a back strain superimposed on pre-existing degenerative disease.  Again, the carrier fails to file a DWC-12 denying that pre-existing condition.
  • Six months later the doctor recommends a back fusion.  The adjuster sends the orthopedist an MCC letter and the doctor indicates that the work accident is not the MCC of the need for surgery and the surgery is denied. 

Under the 120-day rule, however, the carrier may have already waived compensability of the pre-existing degenerative disease and is therefore on the hook for the fusion.  A savvy claimant’s lawyer will argue that the carrier was fully aware of the pre-existing condition, continued to provide treatment for it and failed to file a DWC-12 denying compensability within the 120 days.  That savvy claimant’s lawyer may have a compelling argument.

The solution: deny early and often.  Whenever we see a diagnosis that we know is clearly pre-existing, the best practice is to file a DWC-12 denying that pre-existing condition.  We can continue to treat the back strain, but we must affirmatively deny the pre-existing arthritis, degenerative disc disease, stenosis or other pre-existing condition.  If we do so consistently, we will avoid the 120-day mine field and that savvy claimant’s lawyer will have to go elsewhere with his “gotcha” tactics. 

If you have any questions on this topic, please feel free to reach out to one of us at HR Law. This month’s author is Bill Rogner, wrogner@hrlawflorida.com