Greetings,

On May 29^th, the 1^st DCA issued a ruling in a case involving what satisfies a 1-time change request, and certified a question to the Florida Supreme Court on the matter.   The case is City of Bartow v. Flores, link attached.

The facts are as follows:

On 6/20/ 2017, the claimant requested a 1-time change in neurologist.   The next day, 6/21/17, the E/C responded with the name of the new neurologist, that the original treater was de-authorized, and details regarding the appointment would be forthcoming.

The claimant’s attorney followed up several times, and on 8/16/17 (56 days after the request) the E/C provided an appointment date set for 9/11/17.  From the evidence submitted, the JCC found the new doctor was not contacted until a month after the request and multiple status requests from the claimant’s counsel.  The claimant argued that because of the delay,  she retained the right to select the physician.  The JCC agreed the claimant had the right to pick the 1-time change, and the E/C appealed.

The 1^st DCA reviewed their prior decisions, such as Gadol, where they had found the E/C timely responds to 1–time change by informing the claimant of the doctor’s name within 5 days.  In Gadol, the Court stated it does not require the E/C to actually contact or schedule an appointment within the 5 days.

However, in this current case, the 1^st DCA noted they have never interpreted the 4^th sentence in the 1-time change statute, what it means to actually “provide” a change of physician.  

440.13(2)(f) Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.

The Court reviewed numerous prior rulings to distinguish between authorization and providing benefits.  In this case, the 1^st DCA agreed with the JCC and sided with the claimant.  Whether an E/C timely “provides” an alternative doctor will be a fact-based question determined by the JCC.  In the footnote to that sentence, the DCA states:

5 We acknowledge that multiple factors will be relevant in a JCC’s determination of whether the E/C “failed to provide” the alternate physician such as: geographical availability of physicians; office policies of individual physicians; requirement of medical record review by physician before acceptance of new patients; efforts of the carrier; exigency of injured workers’ medical condition; and treatment needs, among others.

The DCA concluded this case with:

Upon a written request to the E/C, section 440.13(2)(f) entitles an injured worker to a one-time change of physician. The E/C controls selection if the alternate physician is authorized within five days of receipt of the request. However, the E/C forfeits the right of selection if it subsequently fails to provide the alternate physician by unreasonable delay in acquisition of an appointment date.

So for now document, document, document all steps you take in scheduling the appointment.  Every voicemail, fax and phone call, document in your adjuster notes.  Even if no one answered, document it.  Get any pre-payment out quickly.   If the doctor needs to review records first, do so quickly.  Follow up timely.  Keep your defense attorney and the claimant’s attorney informed of your follow ups.  A complete and thorough timeline will help you retain the choice of physician.

BUT of future concern is the question that was certified to the Florida Supreme Court to address:

Thus, we AFFIRM but CERTIFY a question of great public importance.

WHETHER AN E/C’S DUTY TO TIMELY FURNISH MEDICAL TREATMENT UNDER SECTION 440.13(2), WHICH INCLUDES A CLAIMANT’S RIGHT TO A ONE-TIME CHANGE OF PHYSICIAN DURING THE COURSE OF SUCH TREATMENT PURSUANT TO SUBSECTION (2)(f), IS FULFILLED SOLELY BY TIMELY AUTHORIZING AN ALTERNATE PHYSICIAN TO TREAT THE CLAIMANT OR WHETHER—IN ORDER TO RETAIN ITS RIGHT OF SELECTION AFTER TIMELY AUTHORIZING THE ALTERNATE PHYSICIAN TO TREAT THE CLAIMANT—THE E/C MUST ACTUALLY PROVIDE THE CLAIMANT AN APPOINTMENT DATE WITH THE AUTHORIZED ALTERNATE PHYSICIAN?

The DCA is asking the Fla Supreme Ct whether we need to have an actual appointment within 5 calendar days to retain the right to pick the doctor.  As most of you know, this is a logistical impossibility due to the way doctor’s offices function.   It would mean a 1-time change fax at 4:58 on Wednesday before Thanksgiving, you would need to respond with the name of a doctor and when the appointment will be on Monday.  Hopefully the Fla Supreme Court understands that impossibility.  Actually hopefully they ignore the question and decline to answer it.

https://www.1dca.org/content/download/636687/7232999/file/181927_1284_06012020_101752_i.pdf

Sincerely,
Morgan  Indek | Managing Partner