JCC Orders Hip Arthroscopy Second Opinion After 120-Day Waiver

In Scherfer v. Orange County Public Schools/USIS, OJCC Case No. 21-023022NPP, the claimant was a special education teacher injured when a student jumped into her lap, causing low-back symptoms that later developed into disputed right-hip treatment issues. The pending claim sought authorization of a second opinion for consideration of a hip arthroscopic procedure recommended by Dr. Johnston.

Judge Neal P. Pitts found that the employer/carrier waived the right to deny compensability of the right-hip arthritis under the 120-day pay-and-investigate rule. The order found the E/C first provided benefits for the arthritis no later than July 14, 2025, continued furnishing hip-related care, did not send a 120-day reservation letter, and did not timely or specifically deny compensability of that condition.

The JCC also held that the E/C forfeited the right to contest medical necessity because it received Dr. Johnston's December 23, 2025 DWC-25 request for a hip-arthroscopy second opinion on December 29, 2025 and did not respond within 10 days. On the merits, the judge accepted Dr. Johnston over Dr. Hurbanis, emphasizing the claimant's relief from intra-articular hip injections and lack of relief from low-back injections.

The practical result is that the E/C must authorize and schedule a second opinion with an orthopedic surgeon for consideration of hip arthroscopy, with the surgeon told that the right-hip arthritis is compensable as a matter of law. Fees and costs were also awarded for securing that medical benefit.

Source: Compensation Order