By: Peter K. Manso, Associate, West Palm Beach

On April 21, 2016, Judge Sojourner of the Lakeland district issued an order in which she ruled that when an accident is compensable and a previous final order is issued finding no further treatment is necessary, the claimant has no right to a one-time change in physician.

At a Motion for Summary Final Order hearing on the issue, the claimant’s counsel argued that a claimant is entitled to a one-time change in physician as an absolute right as a matter of law.

Attorney Brandon Silver, , of our West Palm Beach office represented the E/C at the hearing, and successfully argued that the prior final compensation order that found no further medical treatment was necessary would be rendered meaningless if res judicata did not apply. He also argued that the issue of the claimant’s entitlement to a one-time change was ripe at the time of the prior hearing.

The facts of this case are important in the determination in this case of first impression. The claimant filed a Petition for Benefits seeking the authorization of a primary care physician (PCP). Arguing that the statute of limitations had run, the E/C filed a formal response denying the request. In the E/C’s trial brief, they also raised the defense that no further treatment was medically necessary as the claimant’s industrial accident was not the major contributing cause of the need for treatment. It was further noted that the claimant’s authorized medical provider had already placed her at maximum medical improvement (MMI).

A final compensation order was issued, which held that the statute of limitations had not run, but the claimant was not entitled to a PCP because no further treatment was required as a result of the compensable injury. Specifically, Judge Sojourner stated that “uncontroverted medical testimony established that the claimant was at MMI and no further treatment was necessary for the compensable injury; thus, there is no basis for authorization of another treating physician.”

Several months later, the claimant filed a new petition, seeking a one-time change. The E/C denied the request based on the prior compensation order and res judicata. Motions for Summary Final Order were filed by both parties, and a hearing on the matter was conducted on April 20, 2016.

The claimant argued that her right to a one-time change was absolute despite the prior final order stating no further accident-related treatment was medically necessary. In essence, the claimant argued that she could seek a determination at a final hearing regarding the necessity of further treatment and in the event that she lost, utilize her “absolute right” to a one-time change to continue treatment. The employer argued that this result would allow claimants two chances at securing further medical treatment, and would also render the final hearing meaningless.

Section 440.25(4)(d), Florida Statutes states that “any benefit due but not raised at the final hearing which was ripe, due or owing at the time of the final hearing is waived.” The issue in this case was how to address this rule with the case law giving claimants an “absolute right” to a one-time change.

Judge Sojourner reconciled the two competing interests by ruling that res judicata barred the claimant’s request for a one-time change when a final order had previously been entered denying the medical necessity of ongoing care. She pointed out that claimant failed to present evidence to establish her entitlement to care when the opportunity was ripe at the prior final hearing. Moreover, Judge Sojourner recognized that to rule otherwise would allow the claimant “a second bite at the apple.”

In sum, claimants waive their right to a one-time change when ongoing care for a compensable accident is denied in a final order. In addition, if a claim for a one-time change was ripe at the time of the prior order, claimant’s risk waiving that right. This order has been appealed by the claimant, so stay tuned for updates.