While there are many time-sensitive related matters in workers’ compensation,
one of the most important issues is the request for a one-time change
of physician. Under Section 440.13(2)(f) of the Florida Statutes, “Upon
the written request of the employee, the carrier shall give the employee
the opportunity for one change of physician during the course of treatment
for any one accident.” The Carrier has five (5) days to respond
to this request and if the Carrier does not, then the claimant can select
the physician of their choosing and this physician will be considered
authorized if the treatment is compensable and medically necessary.
Due to the short timeframe and potential for exposure in workers’
compensation claims, it is imperative that the Carrier is always made
aware of a one-time change request immediately. Claimant attorneys understand
that Carrier’s receive a deluge of correspondence on a daily basis
and also understand the difficulty of reading every article of physical
mail and e-mails that are sent on a daily basis. With the decision of
Castellanos v. Next Door Co., there are claimant attorneys that will resort to any measure to obtain
fees and the one-time change of physician provision is no different.
While there is no harm in a conspicuous e-mail or letter requesting a one-time
change, there have been issues with claimant attorneys to request a one-time
change in a less than savory manner. In
Gonzalez v. Quinco Electrical, the claimant’s attorney filed a Petition for Benefits and three
weeks later filed a Notice of Appearance with the Court. A notice of appearance
is typically a one-page pleading which states the counsel of record for
a party. In this case the Notice of Appearance was filed with the court
and titled as a Notice of Appearance. However, filed along with the Notice
of Appearance was a second page that included a request for a one-time
change. Claimant’s attorney even admitted to the Judge of Compensation
Claims that, “He took advantage of his belief that adjusters do
not always read in full every document they receive.” The First
District Court of Appeals ultimately ruled that this did not constitute
an effective notice to the Employer/Carrier of its request for a one-time
change. The Court also admonished the claimant’s attorney for this
type of practice, which was in contradiction to the Florida Bar Creed
of Professionalism.
Some examples of gamesmanship on the part of claimant attorney’s
includes providing the incorrect address on the letter requesting a one-time
change, sending the letter to the Employer who are likely unaware of what
a one-time change of physician request is, sending the letter to the Nurse
Case Manager on a file, sending a letter or filing a Petition for Benefits
which simply notes the Statute by number only with no conspicuous request
for a one-time change and one of the more common instances is sending
the letter or filing a Petition for Benefits right before a holiday weekend
at the end of the day.
While there is case law that supports the Employer/Carrier’s position
of a one-time change of physician, it continues to be imperative that
Employer/Carrier and its defense counsel remain cognizant of these types
of hidden requests.