Florida Workers' Compensation Lawyer & Attorney : David A. McCranie : Serving Jacksonville, Miami, Tampa, St Petersburg

Section 440.13(2)(f), Fla. Stat., entitles the claimant to a "one-time-change-of-physician" upon his written request "during the course of treatment" for an on-the-job accident.  Does such a written request come "during the course of treatment" when it is made after the initial treating physician has discharged the claimant from his care and opined that "[n]o further treatment is indicated for this patient"?  Yes, said the First District Court of Appeal in Providence Property and Casualty v. Wilson, decided on 9/23/2008.

 

Consistent with its opinion in Dawson v. Clerk of the Circuit Court - Hillsborough County, decided by another panel of the court on the same day, the court also held that upon proper request the E/C must authorize the requested change — even in cases where the E/C contend that the industrial accident is not the "major contributing cause" of the need for treatment.  "[I]f, after authorization of the one-time change," said the court, "the E/C are still of the opinion that the treatment recommended or provided is unnecessary, or is unrelated to the industrial accident, the E/C can deny authorization for such treatment pending resolution of the issue by the JCC."  

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When the claimant's treating physician opines that the claimant's industrial accident is no longer the "major contributing cause" of her ongoing medical problems, is the claimant entitled to a "one-time-change-of-physician" in order to obtain a contrary medical opinion?  Yes, said the First DCA in Dawson v. Clerk of the Circuit Court - Hillsborough County, reversing the JCC who had concluded that in such circumstances the claimant's only recourse is to request an "independent medical examination."

 

In the same case, at the E/C's request the JCC had appointed an "expert medical advisor" to resolve a conflict between two physicians on the issue of whether the claimant's industrial accident was the "major contributing cause" of her shoulder injuries. [Section 440.13(9) authorizes the appointment of an expert medical advisor ("EMA") when there is conflict in the medical testimony].  The EMA had concluded that the claimant's shoulder injuries were not caused by her accident, and accordingly the JCC denied any treatment for those problems.  But the First DCA reversed, holding that an EMA should never have been appointed in the first place because in fact there was never any "conflict" in the medical testimony.  The court noted that the physician who gave the allegedly conflicting opinion on the issue of causation (1) had not been authorized by the carrier to treat the shoulder, (2) never examined the claimant's shoulder, and (3) did not review any diagnostic studies or or medical records pertaining to the claimant's shoulder.  Under these circumstances, there was insufficient evidence of a "conflict" on the issue of causation.

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The claimant is entitled to a "one-time-change-of-physician" under §440.13(2)(f) where the first physician evaluated him and ordered an MRI scan even though he never rendered any actual treatment.  So said the First District Court of Appeal in Nunez v. Pulte Homes, Inc., decided on 7/7/2008.

 

The statute in question provides that the carrier "shall give the employee the opportunity for one change of physician during the course of treatment for any one accident" (emphasis added).  In Nunez, the record showed that the claimant had been seen twice by Dr. Lusk, a neurosurgeon who, after ordering an MRI scan, opined that the claimant was not a candidate for surgery.  The claimant, who speaks Spanish, was dissatisfied with Dr. Lusk because he could not properly communicate with the doctor.  He therefore requested a "one-time-change-of-physician" pursuant to the statute.

 

The E/C refused the request, relying upon Butler v. Bay Center, wherein the First District held that in order to be entitled to a "one-time-change," the claimant must have actually received treatment from the physician from whom the change is requested.  The JCC agreed and denied the request.

 

But on appeal, the First DCA distinguished Butler and reversed.  The court held that for purposes of the statute, "treatment" includes "examination and diagnosis as well as application of remedies."  Therefore, because Dr. Lusk evaluated the claimant "during the course of treatment," he was entitled to a "one-time-change" as a matter of law.

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On 6/29/2007, the Florida Supreme Court denied review in the Butler v. Bay Center case which I wrote about here.  Therefore the decision of the First DCA, which held that the one-time-change-of-physician provision is to be applied retroactively, stands.

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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."

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