By Morgan Indek | Partner

Greetings,  

The 1^st DCA issued a very good ruling for us today on 1-time changes in Gonzalez v. Quinco (1D14-5395).   This case will hopefully put an end to the shenanigans some claimant attorneys have resorted to in trying to disguise a request for a 1-time change in doctors under 440.13(2)(f).   If the Employer/Carrier does not respond (with the name of a doctor) to the written request by the claimant within 5 days, the claimant then gets to pick the doctor, and we lose control of the medical. 

In this case, the claimant’s attorney placed his request for a 1-time change on page 2 of a Notice of Appearance.  The 1^st DCA called this inappropriate sharp practice and gamesmanship.  They noted this had the effect of delaying the delivery of benefits and increasing litigation and expense, directly contrary to the intent of WC. 

If the Employer/Carrier receives a request and fails to respond to it within the statutory period because of the form or context of the request, there may not have been sufficient notice to trigger the E/C’s obligation to respond. 

The 1^st DCA stated that a claimant’s request for a 1-time change should not be inserted into a document that appears on its face to have exclusively another purpose. 

Here’s the key phrase:  A request for a 1-time change should be readily apparent, unobscured and unambiguous for the purpose of placing the E/C on notice that such a request is being made in that document. 

So, what does this mean? 

We will have to wait and see how the JCC’s interpret those terms.  I think that simply stating an appointment with Dr. So and So  and citing the statute (440.13(2)(f)) in a PFB is still going to fly.  Faxing a request at 4:58 on Wednesday before Thanksgiving may be questionable.  If it looks shady, and you missed the 5 days, you might want to fight it.