Morgan’s Tip of the Week – Losing Control of One Time Change
Greetings,
The 1st DCA issued a troubling decision regarding 1-time changes in St. Lucie Public Schools v. Alexander (case attached). In this case, the E/C timely responded to the 1-time change request, but because there was a 16-day gap in following up on an appointment, the E/C lost control of the choice of doctor.
The DCA relied on their prior ruling in City of Bartow v. Flores (link below), where they found that the E/C loses the right to choose the doctor if there is an unreasonable delay in securing an appointment date. In Flores, it took the E/C 56 days after the 1-time change request to provide an appointment date, and almost no documented effort was made in those 56 days. The DCA found because of that unreasonable delay, the E/C forfeited the right to choose the doctor.
However, I don’t think this was the case in Alexander, but again I was not consulted by the DCA Here is the Alexander timeline (from the underlying JCC order):
12/9/19- 1-time change request faxed to E/C
12/10/19- Adjuster responds with name of Dr. Rivera
12/11/19- Adjuster leaves voicemail with Dr. Rivera’s WC scheduler
12/16/19- Dr. Rivera’s office returns call and advises adjuster needs to send records
12/16/19- (same day) Adjuster sends the records and also a form that says Dr. Rivera is authorized
1/02/20- Adjuster follows up with Dr. Rivera’s office on status of appointment, leaves voicemail (this was 16 days after records were sent BUT it was over the holidays which is not mentioned by the JCC or the DCA)
1/06/20- Adjuster assigns a nurse case manager to help secure the appointment
1/07/20- NCM speaks with Dr. Rivera’s office (this is the 21-day gap after records were sent before actual contact referenced by the DCA)
1/09/20- Dr. Rivera’s office informs NCM he will not see the claimant
1/09/20 (same day) NCM contacts another provider, Dr. Rubenstein
1/13/20 – Dr. Rubenstein’s office agrees to see the claimant, appointment set for 2/03/20. Claimant refuses to attend and insists she has the right to choose the 1-time change.
The 1st DCA found the 16-day gap in contact / 21-day gap in actual contact to be an unreasonable delay, and the claimant was able to select her own 1-time change. The JCC noted in the underlying order “it may be necessary to prod the physician’s office into action.” In the realities of handling claims, this to me seems like a fairly harsh application of “unreasonable delay”, especially given the holidays. However, this is the hand we have now been dealt.
I would strongly encourage setting a diary to follow up on 1-time change appointment requests every few days, and equally important, thoroughly document those attempts to secure the appointment.
Here is the original case on “unreasonable delays” City of Bartow v. Flores:
https://www.1dca.org/content/download/636687/opinion/181927_1284_06012020_101752_i.pdf
Please let me know if you have any questions, and please don’t yell at me for the this one, they didn’t ask my opinion.
Sincerely,