Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
  • Blog
  • Links
  • Contact Us

February 10, 2017 by admin

Workers’ compensation — Medical benefits — One-time change of physician — Judge of compensation claims erred in finding that employer/carrier retained right to select claimant’s one-time change of physician, even though e/c failed to respond to claimant’s request within five days of receipt as required by statute, because claimant had not actually obtained treatment with a physician of his choice prior to entry of order declining to authorize claimant’s selected physician

42
Fla. L. Weekly D327a
Top of Form

Workers’
compensation — Medical benefits — One-time change of physician — Judge of
compensation claims erred in finding that employer/carrier retained right to
select claimant’s one-time change of physician, even though e/c failed to
respond to claimant’s request within five days of receipt as required by
statute, because claimant had not actually obtained treatment with a physician
of his choice prior to entry of order declining to authorize claimant’s
selected physician — Claimant remained entitled to select physician so long as
claimant had not attended any appointment scheduled by e/c — Further, JCC’s
pronouncement that e/c was entitled to select the one-time change “without
regard to that physician’s speciality in medicine” is not in accord with plain
language of statute

MILOVAN
ZEKANOVIC, Appellant, v. AMERICAN II, CORP., and GALLAGHER BASSETT SERVICES,
INC., Appellees. 1st District. Case No. 1D16-3669. Opinion filed February 7,
2017. An appeal from an order of Judge of Compensation Claims. Stephen L.
Rosen, Judge. Date of Accident: February 7, 2014. Counsel: Bill McCabe,
Longwood, and Joey D. Oquist, St. Petersburg, for Appellant. Thomas P. Vecchio
of Vecchio, Carrier, Feldman & Johannessen, P.A., Lakeland, for Appellees.

(PER
CURIAM.) In this workers’ compensation appeal, Claimant argues that the Judge
of Compensation Claims (JCC) erred in finding that the Employer/Carrier (E/C)
retained the right to select his one-time change of physician, even though the
E/C agreed they failed to respond to his request within five days of its
receipt, as required by paragraph 440.13(2)(f), Florida Statutes (2013). For
the following reasons, we agree.

The
parties are in agreement on the relevant underlying facts. On December 23,
2015, Claimant faxed a formal grievance to the E/C and to their attorney
requesting a one-time change in physician from Dr. Pagano, his authorized
treating orthopedic surgeon. The E/C did not respond to the request until
January 5, 2016. On January 13, 2016, Claimant filed a petition for benefits
requesting authorization of Dr. Hassan, a pain management physician, as his
one-time change. The E/C declined to authorize Dr. Hassan; rather, Dr. Pagano
remained authorized. As of the date of the hearing, Claimant had not sought
treatment with Dr. Hassan or any other a physician of his choice.

In
the appealed order, the JCC found that Claimant was entitled to his one-time
change of physician because the E/C failed to timely respond to his request.
Nevertheless, because Claimant had not actually obtained treatment with a
physician of his choice prior to the entry of the appealed order, the JCC found
that the E/C retained the right to choose Claimant’s one-time change “without
regard to that physician’s specialty in medicine.”

Because
resolution of this issue requires statutory interpretation, our review is de
novo. See Lombardi v. S. Wine & Spirits, 890 So. 2d 1128,
1129 (Fla. 1st DCA 2004). Under paragraph 440.13(2)(f), a claimant who sustains
a compensable injury is entitled to a one-time change in treating physician as
an absolute right if a written request is made during the course of treatment. See
Providence Prop. & Cas. v. Wilson, 990 So. 2d 1224, 1225 (Fla. 1st
DCA 2008). If the E/C fails to respond to that request within five calendar
days, the claimant may select the physician and that physician shall be
considered authorized if the treatment provided is compensable and medically
necessary. See Hinzman v. Winter Haven Facility Operations LLC,
109 So. 3d 256, 257 (Fla. 1st DCA 2013).

The
JCC’s reasoning here, which is that Claimant’s failure to timely exercise his
right to select his physician returned that right to the E/C, runs afoul of
this court’s case law. Most recently, in Gadol v. Masoret Yehudit, Inc.,
132 So. 3d 939, 940 (Fla. 1st DCA 2014), the JCC interpreted the statute “to
give the claimant the right to select his or her change of physician
immediately upon expiration of the 5 days and claimant maintains that right up
until the moment the E/C authorizes an alternative physician at which time that
right is lost.” The Gadol court reversed, holding that the JCC’s
interpretation went beyond the plain language of the statute. Noting that a
claimant may waive his or her right to select the physician if he or she
subsequently accedes to the E/C’s choice, the Gadol court explained the
E/C’s selection of a physician before or at the same time as the claimant makes
his or her selection does not constitute a waiver by the claimant, so long as
the claimant has not attended any appointment scheduled by the E/C. Id.
at 941. See also Harrell v. Citrus Cty. Sch. Bd., 25 So. 3d 675,
677 (Fla. 1st DCA 2010) (holding that where response to request was untimely,
claimant remained entitled to select her own physician even though the E/C
advised claimant of specific authorization nineteen days after request).

Further,
the JCC’s pronouncement that the E/C was entitled to select the one-time change
“without regard to that physician’s specialty in medicine” is not in accord
with the plain language of the statute. See Perez v. Rooms To Go,
997 So. 2d 511, 512 (Fla. 1st DCA 2008) (holding that, when construing statute,
courts must first look to its plain language). This court, in RetailFirst
Insurance Co. v. Davis
, No. 1D16-2310 (Fla. 1st DCA Jan. 23, 2017) [42 Fla.
L. Weekly D222b], recently addressed this question and concluded that, when
dealing with a one-time change, the change must be within the same specialty
regardless of who makes the selection.

Finally,
we note that Claimant submitted his request on December 23, just prior to the
holidays, giving the E/C a little more than one business day to respond. There
is no question that the request was clear, not obscured, but it nevertheless
smacks of gamesmanship. This illustrates the concerns noted by this court in Hinzman,
109 So. 3d at 257, when contrasting “calendar” days with “business” days. As we
explained in Hinzman, however, this is a policy consideration that
should be directed to the Legislature, not this court. Id.

Accordingly,
the order is REVERSED and REMANDED for proceedings consistent with this
opinion. (WOLF, LEWIS, and WETHERELL, JJ., CONCUR.)

* *
*Bottom of Form

 

Filed Under: Articles

Primary Sidebar

Recent Posts

  • Attorney’s fees — Prevailing party — Appeal from order awarding attorney’s fees and costs and attorney’s fees for fees incurred in litigating amount of fees reversed in light of appellate court’s reversal of substantive portion of summary judgment on which awards were based and remand with instructions — Reversal is without prejudice to filing new appeal after trial court has concluded its labor
  • Insurance — Property — Insured’s action against insurer — Error to enter summary judgment in favor of insurer where there were factual issues as to insured’s compliance with post-loss obligations and any ensuing prejudice — Remand for further proceedings
  • Insurance — Homeowners — Assignee’s breach of contract action against insurer — Attorney’s fees — Prevailing party — Insurer was not entitled to summary judgment in its favor after paying post-lawsuit appraisal award within time limit required by the policy where appraisal process confirmed that insurer had wrongly denied paying assignee a specified amount of benefits under the policy — Payment of postsuit appraisal award did not render case moot — Remand for further proceedings on assignee’s claim for attorney’s fees and costs
  • Civil procedure — Summary judgment — Failure to state on the record the reasons for granting motion for summary judgment, as required by amended rule — Remand to allow court an opportunity to state reasons for its decision “with enough specificity to provide useful guidance to the parties and, if necessary, to allow for appellate review”
  • Insurance — Personal injury protection — Presuit demand letter — Presuit demand letter did not comply with statute where amount claimed to be due was not sufficiently precise — Although letter asked insurer to advise plaintiff if demand letter was defective in any way, nothing in language of section 627.736 requires an insurer to give notice to the insured or an assignee that a demand letter is defective

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. Abbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2022 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982