The 120-day rule does not apply if the employer/carrier only accepted compensability and provided treatment for a temporary exacerbation.

The claimant requested compensability, evaluation and treatment for the right knee, temporary total disability/temporary partial disability (TTD/TPD) and penalties, interest, costs, and attorney’s fees (PICA) related to an October 19, 2021, work-related injury.

The employer/carrier asserted that only a temporary exacerbation of the claimant’s underlying degenerative joint disease was accepted. The claimant reached maximum medical improvement (MMI) for same condition, and no further treatment was authorized. 

Prior to working for the employer, the claimant had been involved in a motor vehicle accident and had surgery to the right knee. Other than normal aches and pains, she claimed she did not have any issues with her right knee at the time of the work accident. After injections from the authorized provider, she complained of give-way and buckling that was not present before the date of injury. The authorized provider indicated that after three months of treatment, she was back at her baseline.

The claimant asserted that the employer/carrier failed to issue a 120-day letter and deny her request within 120 days. The judge of compensation claims stated that a correct analysis of this issue requires three findings: (1) the date the employer/carrier first provided benefits for the claimant’s condition; (2) the identity of the specific injury for which benefits were provided; and (3) whether the employer/carrier timely denied compensability of the injury for which it provided benefits.

The judge held that the 120-day rule did not apply to the pre-existing degenerative knee joint disease because the employer/carrier never provided any medical treatment other than for the temporary exacerbation. After that ceased, no further care was provided or authorized. Of note, the judge disagreed with the claimant’s argument that if a permanent impairment rating is assigned, it must be accompanied by work restrictions. Therefore, all benefits were denied. 

The claimant appealed, and the First District Court of Appeal affirmed without a written opinion. 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 4, April 2024, 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 © 2024 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.}