On May 29, 2020, the First District Court of Appeal issued an opinion in the case of City of Bartow v. Flores regarding Florida’s one-time change provision and certified a question of great public importance to the Florida Supreme Court, asking they clarify the issue of “what satisfies the E/C’s obligation under section 440.13(2)(f) to ‘provide’ an alternate physician or forfeit its right of selection.”
In the case below, the claimant requested a change in physician from Dr. Henkel on June 20, 2017. The next day, the attorney for the employer/carrier responded to claimant’s counsel and advised the employer/carrier was authorizing Dr. Shriver and de-authorizing Dr. Henkel. The employer/carrier indicated they would provide appointment details under separate cover. Over the next few weeks, the claimant inquired as to the status of an appointment on multiple occasions. On July 19, the claimant filed a petition requesting the one-time change and designating Dr. Koebbe as his selection due to the employer/carrier not providing “the response requested” within five days from the request for the change. On August 16 (which the First DCA pointed out was 56 days after the employer’s/carrier’s receipt of the one-time change request), the employer/carrier advised claimant of an appointment with Dr. Shiver for September 11. Claimant’s counsel advised claimant would not be attending the appointment. The employer/carrier maintained their position that they had timely authorized the one-time change as they had named and notified claimant of the authorization of Dr. Shiver within one day of receiving the request.
The JCC granted the claimant’s request for a one-time change with the doctor of his choice. The ruling was based upon evidence that showed that attempts to contact Dr. Shiver were not initiated until a month following the request for the change and multiple requests from claimant's counsel as to the status of an appointment. The JCC found the claimant did not waive his right to select the one-time change as he did not attend the appointment with Dr. Shiver. The employer/carrier appealed.
The First District Court of Appeal affirmed the JCC’s order, but wrote a lengthy opinion to certify the question above based on further analysis of §440.13(2)(f), Fla. Stat, which states:
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 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. Emphasis added.
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 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. Emphasis added.
The First DCA previously defined the necessary steps required of an employer/carrier to satisfy “authorization” of a one-time change as informing claimant of the new doctor’s name within five days. However, in the Flores opinion, the court focused on the “provision” aspect of the statute which they found is satisfied only by providing an appointment date/time within the 5-day period. The court found the legislature’s deliberate use of different terms in the third and fourth sentences of the statute clearly indicates an intent to impose a two-fold duty on the part of the employer/carrier in order to retain its right of selection – the duty to (1) timely authorize by naming the alternate physician and informing the claimant and (2) timely provide the physician by acquiring an appointment date and informing the claimant. According to the court, interpreting the one-time change statute to only include the naming of an alternate physician within five days would be in stark contrast to the overall purpose of the Workers’ Compensation Law which is to efficiently deliver benefits to the injured worker.
As we continue to await a response from the Florida Supreme Court, whenever possible, the employer/carrier should make every effort to select, authorize and provide an appointment date with the alternate physician within the 5-day period. It appears this opinion is the result of the court being displeased with the amount of time that passed before any efforts were made to secure an appointment date. Accordingly, this case should serve as a reminder that the employer/carrier should be keeping detailed notes on all efforts to secure an appointment date within the 5-day period in the event testimony is needed at a hearing on the issue.
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