One-Time-Change-of-Physician Provision Applies to All Accidents
The one-time-change-of physician provision [s.440.13(2)(f)] applies to all accidents, whether they occurred before the effective date of the statute or not. That's what the First DCA said in its 2-1 decision in Butler v. Bay Center. I'll discuss the specifics of this important case below. But first, a little background.
- THE PRE-1994 LAW
Before 1994, a claimant's right to change physicians was governed by s.440.13(3), Fla. Stat., which provided that "[i]f an injured employee objects to the medical attendance furnished by the employer. . . it shall be the duty of the employer to select another physician. . . ." Construing that version of the statute, the First District had held that although the Florida Workers' Compensation Act gives the initial right of selection of a treating physician to the employer/carrier, "[i]t. . . reserves to claimant the right to reject such selection, require another authorization, or to seek authorization by the deputy for a physician of claimant's choice." Teimer v. Pixie Playmates, 532 So.2d 37, 40 (Fla. 1st DCA 1988). Tiemer further held that under the pre-1994 version of the statute the claimant "has the right to veto the employer and carrier's selection and compel the employer and carrier to authorize another selection."
- THE 1994 AMENDMENT
The claimant's former unfettered right to "veto" the employer/carrier's choice of alternative physicians began to change in 1994. In Ch. 93-415, s. 17, Laws of Fla. (effective 1/1/1994), the legislature repealed the pre-1994 version of s.440.13(3). In its place, they adopted s.440.13(2)(c), which provided:
If the employer fails to provide treatment or care required by this section after request by the injured employee, the employee may obtain such treatment at the expense of the employer, if the treatment is compensable and medically necessary. There must be a specific request for the treatment, and the employer or carrier must be given a reasonable time period within which to provide the treatment or care. . . .
In City of Bartow v. Brewer, the First DCA held that s.440.12(2)(c) "does not authorize the JCC to order treatment with a specific physician, where the E/C promptly offers other qualified alternatives." And in St. Augustine Marine Canvas & Upholstery, Inc. v. Lunsford, the Court held that the statute "does not. . . give the employee the right to treatment by the physician of her choice unless the employer refuses to provide a physician altogether."
- ONE-TIME-CHANGE OF PHYSICIAN
In 2001, the law governing the employer/carrier's duty to authorize alternative medical providers again changed significantly with the enactment of s.440.13(2)(f), the so-called "one-time-change-of-physician" provision. See Ch.2001-91, s.12, Laws of Fla. As originally enacted, it required the employer/carrier, upon written request of the claimant, to provide an alternative physician from a list of three physicians whom the carrier would agree to authorize. Unlike under previous versions of the statute, the right to change physicians is now one which the claimant may exercise only one time per accident.
- THE 2003 AMENDMENT
In 2003, the legislature amended the one-time-change provision, repealing the requirement that the carrier provide the claimant a list of three alternate physicians. Under the 2003 amendment, the carrier need only authorize a single alternate physician. Only if the carrier fails to act within five days of receiving the claimant's written request does the claimant get to choose the alternate provider. See Ch. 2003-412, s.15. Laws of Fla.
- THE FACTS IN BUTLER
Brenda Bulter was injured on 9/3/1986. In April 2005, her treating physician referred her to pain management. According to the carrier, they were unaware of this referral until after they received Ms. Butler's July 2005 PFB requesting authorization to treat with Dr. Gari. In response to the petition, the carrier agreed to authorize Dr. Chaumont, a pain management physician, but not Dr. Gari. For various reasons, the claimant refused to see Dr. Chaumont, and so the matter went before the JCC for resolution.
- THE JCC'S DECISION
The JCC denied Ms. Butler's request for Dr. Gari. Both the claimant and the employer/carrier agreed that the law as it existed in 1986 applied to Ms. Butler's 2005 request. As noted above, that law provided that "[i]f an injured worker objects to the medical attendance furnished by the employer. . . it shall be the duty of the employer to select another physician. . . ." See s.440.13(3), Fla. Stat. (1985). The JCC concluded because Dr. Chaumont never actually provided any medical care to Ms. Butler, he never "attended" her; therefore, the employer/carrier had no "duty" to authorize another physician. But even if he had provided such attendance, the JCC concluded, "as a matter of law claimant must have some reasonable objection to the physician offered before E/C is required to select another. The JCC found that the E/C had timely responded to Butler's request for a change of physician and that her rejection of Dr. Chaumont was not objectively reasonable. (You can read the JCC's decision here).
- THE FIRST DISTRICT'S (MAJORITY) OPINION
In its analysis, the majority framed the issues before the JCC this way: (1) whether the E/C's authorization of Butler's pain management request was timely; and, if so (2) whether the claimant may refuse treatment and immediately request a one-time change in her treating physician. The majority then concluded that "[s]ection 440.13, Florida Statutes (2005), establishes an E/C's duty to to ensure an injured claimant receives medical treatment, and it prescribes the procedure for authorizing medical providers [citation omitted]. Accordingly, the 2005 version of section 440.13 controls this case."
As to the first issue, the Court affirmed the JCC's finding that the employer/carrier responded to Butler's request for a pain management physician in a timely manner. That being the case, the majority reasoned, "the JCC could not award the specific physician sought by Claimant." The majority then reasoned that because the treatment had been timely authorized, "the JCC was required to determine whether Claimant could request a one-time change in her treating physician without first being treated by the authorized physician."
Turning to the second issue, the majority concluded that Butler had no right to a one-time change of physician here. "Logically," said the majority, "if a claimant never even attended the initial appointment with the authorized physician, then she cannot 'change' that physician because she was never treated by the physician." Therefore, "the Claimant's right to request a one-time change did not attach."
- JUDGE KAHN'S DISSENT
While not disagreeing with the majority's construction of the one-time-change-of-physician provision, Judge Kahn observed that neither the claimant nor the E/C had ever argued its applicability below. Moreover, the JCC never mentioned the provision in her order, and neither the claimant nor the E/C urged its applicability on appeal.
Judge Kahn disagreed that the one-time-change-of-physician provision was applicable to the case. Rather, he argued that the claimant's previous right to veto the carrier's selection of a physician was "not merely a procedural burden of proof matter." And he argued that the JCC's construction of the pre-2001 version of the statute was erroneous and should be reversed.
- POSSIBLE SUPREME COURT REVIEW
Butler moved the First District for rehearing and for rehearing en banc, but the motions were denied. She then filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court. A decision from the Supreme Court on whether to accept jurisdiction is currently pending. You can read Butler's brief on jurisdiction here and Bay Medical's brief in opposition here.
- IMPLICATIONS OF THE DECISION
What does this decision mean? Assuming that it is allowed to stand, does it mean that other provisions of the 2003 amendments affecting a claimant's entitlement to medical care under the Florida Workers' Compensation Act will also apply retroactively? For example, the 2003 amendment to s.440.13(5)(a) now says that a claimant must front the cost for his own IME, subject to recovery of that cost from the employer/carrier if he prevails in a dispute against them. Wallace Hardy, the state mediator in Pensacola, suggests in the Spring/Summer 2007 edition of the News and 440 report that perhaps Butler conflicts with the First District's previous decision in Southern Bakeries v. Cooper, 659 So.2d 339 (Fla. 1st DCA 1995), which held that the 1994 amendment to s.440.13(5), limiting admissible medical testimony in workers' compensation proceedings to authorized doctors, IME's, or EMA's, was not retroactive. Personally, I don't think that the 2003 IME changes would ever be held to be retroactive because they involve a shift in the actual monetary burden of paying for these examinations.
We'll see.
