By: Matthew Colon, Associate, Miami

In more ways than one, the law resembles a computer program. It is often nothing more than a series of parameters to which things must be confined. In order for Z to occur, X and Y must be present. Thankfully for me my colleagues, the law does not always operate in this manner. Sometimes parameters, variables, or even results are ambiguous and fleeting.

The law, like a piece of computer software, is not infallible; they are both, after all, created by people. In computer software, hackers constantly probe and prod coding until vulnerability is revealed. Once it is uncovered, the vulnerability is exploited. Word of the weakness gets out and the floodgates open to a flurry of attacks. It is at this point that the engineers of the program (in our case, the legislature) scramble to patch the vulnerability; that is, to effectively plug the hole and correct the occurrence of the unintended outcome. Within our workers’ compensation system, there are few better examples of such exploitation than with the rules surrounding a one-time change in physician. Without belaboring the point further, here are a few things to watch out for with respect to the one-time change given some of the more recent trends that we have noticed in late 2016 and early 2017.

First, make sure that you pay close attention from where and from whom the request is coming. The statute requires that the request for a one-time change be made in writing by the claimant and sent to the carrier. Of course, as authorized representatives, it is quite typical for such a request to be made from the claimant’s attorney to the carrier’s attorney. However, be wary of any requests for one-time changes that are made on behalf of the claimant from a third-party unrelated to the claim. Be even more wary if the party attempting to effectuate the request is also the party that is seeking to be authorized. It is our position that third parties, aside from the claimant’s counsel, are not capable of requesting a one-time change in specialty. Should you receive such a request, make sure to reach out to defense counsel to go over the request and to ascertain its validity prior to making any authorizations. Because there are now companies providing medical care under this guise and submitting invoices to carriers, it is best to file a formal denial. It is also beneficial to contact the claimant’s attorney, if represented, to advise of any correspondence received from third party companies.

Second, pay close attention to the type of doctor that the claimant is selecting. The request for a one-time change will usually only name the claimant’s alternate selection (i.e., Dr. Hodor) and will fail to mention that doctor’s specialty. In South Florida, for example, there has been an influx of requests for alternate physicians of a different specialty, especially where the 5 day authorization window has been blown. The justification being proffered by claimants’ attorneys in such cases is that the plain language of the statute states only that if “the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician.” This vagueness is a weakness presently being tested by the claimants’ bar. Luckily, Judges of Compensation Claims are getting wise to such tactics.  In September of 2016, Miami Judge of Compensation Claims Edward R.  Almeyda ruled on such a case that is presently on appeal. In the Final Compensation Order in Escalante v. Progressive Employer Management/Finish Line Feed (OJCC No.: 16-006078ERA) Judge Almeyda ruled, after interpreting the statute as a whole, that even in instances where the Carrier has lost the right of selection of the one-time change physician by failing to provide the same within 5 calendar days, the physician selected must be of the same specialty for the authorization to be valid.  Though the order is presently being appealed, we are hopeful that the 1^st DCA will affirm, allowing the precedent to be set across the state. It is better to challenge the request on the front end, rather than after authorization has been granted if there is a question regarding the specialty or the provider.

Thankfully, gone are days of having to comb through a Request to Produce in search of something amounting to: “Why yes, we would like all of your tax filings for the year 2015 pertaining to the Claimant, a copy of your drug – free workplace policy, and, by the way, we would also like authorization of a physician under FS 440.13(2)(f)”. But the cat and mouse game continues onward, as even the most solid of security patches often fails to close every gap, and sometimes opens up pathways to new undiscovered vulnerabilities.