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Fla. L. Weekly D327aTop of Form
Fla. L. Weekly D327aTop 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
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.
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.
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.
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.”
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).
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).
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.
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.
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.)
the order is REVERSED and REMANDED for proceedings consistent with this
opinion. (WOLF, LEWIS, and WETHERELL, JJ., CONCUR.)
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