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June 23, 2017 by admin

Workers’ compensation — Medical benefits — One-time change in physician — Statute which authorizes claimant to request change of physician once during course of treatment and providing employer/carrier five days in which to authorize an alternative physician not professionally affiliated with “the previous physician” clearly and unambiguously refers to the single immediate prior authorized treating physician

42
Fla. L. Weekly D1386a
Top of Form

Workers’
compensation — Medical benefits — One-time change in physician — Statute
which authorizes claimant to request change of physician once during course of
treatment and providing employer/carrier five days in which to authorize an
alternative physician not professionally affiliated with “the previous
physician” clearly and unambiguously refers to the single immediate prior
authorized treating physician — JCC did not err in rejecting second petition
for benefits in which claimant argued that E/C must authorize a physician who
is not professionally affiliated with “any” previous physician — Physician who
was affiliated with the same practice group as claimant’s original physician,
but who had no affiliation with claimant’s most recent physician, was properly
authorized by E/C in response to claimant’s initial request for change

EDWIN VELEZ, Appellant, v.
COADVANTAGE, EPOCH MANAGEMENT/CCMSI, Appellees. 1st District. Case No.
1D16-5496. Opinion filed June 19, 2017. An appeal from an order of Judge of
Compensation Claims. W. James Condry II, Judge. Date of Accident: May 21, 2015.
Counsel: Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando, and Basil A.
Valdivia of Morgan & Morgan, P.A., Orlando, for Appellant. Bryan A. Lowe
and Eric J. Netcher of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for
Appellees.

(PER CURIAM.) In this workers’
compensation appeal, the claimant challenges the denial of his request for a
new orthopedic physician under the one-time change statute, section
440.13(2)(f), Florida Statutes (2014). We affirm.

The facts are undisputed. The
employer/carrier (E/C) authorized Dr. Munson with Jewett Orthopedic Clinic to
treat the claimant’s compensable injury. When Dr. Munson retired in 2015, the
E/C authorized Dr. Weber with Orlando Orthopaedics. On June 2, 2016, the
claimant filed a petition for benefits (PFB) seeking a new orthopedic physician
pursuant to section 440.13(2)(f). After the E/C timely authorized Dr.
Meinhardt, the claimant filed a second PFB seeking authorization of Dr. Murrah
as his one-time change physician because Dr. Meinhardt was affiliated with the
same practice group as his original orthopedic physician, Dr. Munson. The E/C
responded that it had properly authorized Dr. Meinhardt as the claimant’s
one-time change.

The E/C filed a motion for summary
final order, and after a hearing, the Judge of Compensation Claims (JCC)
granted the motion and denied the claimant’s second PFB. The JCC rejected the
claimant’s argument that section 440.13(2)(f) “should be read to say the E/C
must authorize a physician who is not professionally affiliated with ANY
prior physician, hospital, or medical group who treated the claimant at any
time in his case” (emphasis in JCC’s order). Instead, the JCC reasoned that the
statute prohibited professional affiliation with only the immediately preceding
authorized doctor, which in this case was Dr. Weber — who was undisputedly not
professionally affiliated with Dr. Meinhardt. This appeal followed.

Section 440.13(2)(f) authorizes the
claimant to request a change of physician once during the course of treatment
of the compensable injury. Upon receiving such a request, the E/C has five days
to authorize an alternative physician “who shall not be professionally affiliated
with the previous physician” (emphasis added).

Here, it is undisputed that Dr.
Meinhardt was not professionally affiliated with Dr. Weber, but he was
professionally affiliated with Dr. Munson through Jewett Orthopedic Clinic.
Thus, resolution of this case boils down to which physician — Dr. Weber or Dr.
Munson — is “the previous physician” for purposes of section 440.13(2)(f).

We agree with the JCC that Dr. Weber
is “the previous physician” for purposes of the one-time change statute. That
phrase clearly and unambiguously refers to a singular physician by using the
definite article “the” and the singular noun “physician.” See Golf
Scoring Sys. Unlimited, Inc. v. Remedio
, 877 So. 2d 827, 829 (Fla. 4th DCA
2004) (“ ‘The’ is a definite article ‘used as a function word with a noun
modified by an adjective or by an attributive noun to limit the application of
the modified noun to that specified by the adjective or the attributive noun
<[the] right answer>.’ Webster’s New Collegiate Dictionary 1199
(1980 ed.). As such, ‘the’ limits that to which it refers to only one, to the
exclusion of all others.”); Orange Cty. MIS Dep’t v. Hak, 710 So. 2d
998, 999 (Fla. 1st DCA 1998) (holding statute’s use of definite article
indicates there can be only one major contributing cause). Accordingly, when
coupled with the adjective “previous,” the statute clearly and unambiguously
refers to the single immediate prior authorized treating physician, which in
this case was Dr. Weber.

We find additional support for this
conclusion in Retailfirst Insurance Co. v. Davis, 207 So. 3d 1035, 1037
(Fla. 1st DCA 2017), where we interpreted a different sentence of section
440.13(2)(f) “to reflect a legislative intent of allowing only a one-for-one
exchange of physicians within the same specialty.” Viewing the statute as a
whole, it makes sense that “the previous physician” is only the one being
replaced by the new one-time-change physician in the one-for-one exchange
described in Davis.

Finally, we have not overlooked the
claimant’s argument that, pursuant to section 1.01(1), Florida Statutes, “[t]he
singular includes the plural and vice versa.” However, under the plain language
of that statute, this interpretive tool only applies “when context will
permit,” and here, the context of the phrase “the previous physician” within
the language of section 440.13(2)(f) as a whole does not permit the
interpretation urged by the claimant. Indeed, the claimant’s interpretation
would effectively rewrite the statute to say “a previous physician” or
“the previous physicians,” thereby substantively reducing the pool of
physicians that could qualify as a one-time change physician. We lack the
authority to rewrite the statute in this — or any other — manner. See,
e.g.
, Thrivent Fin. For Lutherans v. State, Dep’t of Fin. Servs.,
145 So. 3d 178, 182 (Fla. 1st DCA 2014) (“[T]his Court may not rewrite statutes
contrary to their plain language.”) (quoting Hawkins v. Ford Motor Co.,
748 So. 2d 993, 1000 (Fla. 1999)).

Accordingly, for the reasons stated
above, the JCC’s order is AFFIRMED. (WETHERELL, RAY, and MAKAR, JJ., CONCUR.)

* * *

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