Greetings,

The 1^st DCA again addressed issues with the 1-time change section of the statute (440.13(2)(f) in Zekanovic v. American II, Corp (1D16-3669) last month.

In this case, the claimant requested his 1-time change on 12/23, and given the 5 calendar days to respond, the E/C missed the window.  The 1^st DCA said:

“Finally, we note that Claimant submitted his request on December 23, just prior to the holidays, giving the E/C a little more than one business day to respond. There is no question that the request was clear, not obscured, but it nevertheless smacks of gamesmanship. This illustrates the concerns noted by this court in Hinzman, 109 So. 3d at 257, when contrasting “calendar” days with “business” days. As we explained in Hinzman, however, this is a policy consideration that should be directed to the Legislature, not this court. Id.”

On a side note, there are several bills pending in the process before the Fla Legislature, and at least one contains a correction to the provision to be 5  business days.

One other important takeaway from this case addressed in the JCC decision is that the claimant had previously twice requested a 1-time change, and the E/C had responded timely.   However, when the E/C provided the name of the doctor selected, the claimant withdrew the request and continued with the original treater.  It was on the 3^rd time that they were able to slide it by.  The JCC pointed out the E/C had not de-authorized the original treater.

One way to prevent that is to fax a de-authorization letter to the treater before providing the name of the new doctor to OC, and thus it is too late.  The risk comes in if the new 1-time change doctor then refuses to see the claimant or the appt date is far off.  You could always authorize a walkin clinic or re-auth the 1^st treater for one visit in the interim if that is an issue.

Thanks and as always let me know if you have any questions.

Sincerely,
Morgan Indek | Partner