Greetings,   the 1^st DCA issued an opinion last week “clarifying” what it means that the 1-time change must be within the same specialty.

Previously, the 1^st DCA had said that neurosurgeon is not the same specialty as an orthopaedic surgeon for the purpose of a 1-time change, even if they both perform back surgery in the Myers case.   Often times, we have trouble finding a conservative doctor in the exact same specialty to take over care since that case.

Well in last week’s case, B & A Gourmet Foods v. Mora-Abreu (https://www.jcc.state.fl.us/jccdocs20/MIA/Dade/2020/004337/20004337_291_11302022_12141374.pdf), the DCA may have opened the door for us to find more doctors.

In this case, the claimant was originally treating with a doctor who held dual specialties as a general surgeon and plastic surgeon, with a sub-specialty of hand surgery.   The request for a 1-time change came in, and the carrier authorized an orthopaedic surgeon, who also had a sub-specialty in hand surgery.  The claimant refused to attend because the doctors were not in the same specialty, general surgery/plastic surgery versus orthopaedic surgery, even though they both primarily performed hand surgery.

The DCA said we should not focus on the Board Certification specialties, but consider “the nature of the claimant’s injury, the authorized course of treatment, and the qualifications, training and expertise of the physicians.”  Specialty for the 1-time change must be one that furthers the continuum of care and facilitates the employee’s return to work.  The court noted both doctors in this case are hand surgeons who have the same level of expertise and training relative to the claimant’s injury and her course of treatment.   They found this was a “one for one” exchange of physicians within the same specialty under the statute.

So, the difference it appears between the Myers case and the B & A Gourmet Foods case is that both doctors in the current case held the same sub-specialty and focus.  In Myers, the ortho and the neurosurgeon did not have the same sub-specialty and focus, or at least it was not part of the record that the neurosurgeon focused/specialized in back surgery.

This should prevent any arguments about us being able to change from a podiatrist to an orthopaedic foot specialist for example because the underlying specialty is the same.  The same for changes in pain management between a physiatrist and an anesthesiologist who performs pain management, because their sub-specialties may be the same. 

As always, if you are having difficulty finding doctors, please reach out to our firm and we will be glad to assist.

Sincerely,

Morgan Indek | Managing Partner