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

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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