By: Mike Quiggins, Partner, Tallahassee

In our January edition of the Eraclides Gazette, Miami attorney Matthew Colon discussed the influx of claimant requests for one time change of physicians of a different specialty, especially in cases where the 5 day carrier authorization window had lapsed under Florida Statute 440.13(2)(f), the often referred “one time change of physician” provision. Depending on interpretation of the statutory language, this has resulted in mixed rulings by the Judges of Compensation Claims around the State, especially if the carrier failed to name a new doctor per the “five day rule.” Some judges determined that a claimant must select a new doctor within the same specialty as the prior authorized doctor while other judges have ruled that a claimant has an unfettered right to choose any doctor of any specialty. We now have a case that decides the issue and provides clarity to employer/carriers.  

Recently, in RetailFirst v. Davis, Case Number 1D16-2310, the Florida 1^st DCA was called to decide the issue of whether an employer/carrier’s failure to respond timely to such a request entitles the employee to a physician of a different specialty from that of the originally authorized physician. In Davis, the employer/carrier had not responded timely to the claimant’s written request for a change of provider.  Based on this failure to timely respond, the claimant contended that he was entitled to select a different specialty under the third sentence of the one time change provision which states, “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 JCC agreed with the claimant and ordered the carrier to authorize the switch from a family doctor to an orthopedic specialist. However, the First DCA reversed the JCC order and found that the JCC had focused his attention on this one sentence in isolation rather than taking in account the second sentence of the one time change provision, which specifically provides for the deauthorization of the originally authorized physician in the same specialty as the changed physician upon written notification by the employer or carrier. Based on its interpretation of the statutory language as a whole, the 1^st DCA held that a claimant is limited to a one-time change in the same specialty, regardless of whether the insurance carrier responds timely to a claimant’s written request.   The 1^st DCA reasoned that if the claimant could select any specialt,y this could allow for the selection of a specialist who is wholly unsuitable for the “course of treatment” than what had been authorized for the specific injury and potentially would allow for two authorized specialists, (giving the claimant in Davis a family doctor and an orthopedist.)  The 1^st DCA determined that this outcome was contrary to the legislative intent of allowing only a one-for-one exchange of physicians within the same specialty on a one time basis per accident.

This is a positive decision for employer/carriers as we have seen many injured workers attempting to change from a primary doctor to a pain management specialist or a neurologist for the purpose of securing long term pain medications, usually a huge cost driver to carriers, and often inappropriate to treat the injury. As a general reminder, carriers have the right to control the selection of the specific physician for authorized care unless it fails to authorize and name a specific doctor within five calendar days from the date of the claimant’s clear written request under 440.13(2)(f). Please note that if a claimant is treating with a clinic and requests a change, a new physician should be named as an individual, and not just a practice. It is very important that you work with your nurses and your defense attorney to authorize one time change physicians timely and in accordance with the law in order to maintain medical control of the claim. Our attorneys are available Statewide to assist you in the selection of one time change providers in any of your cases.