“When you play the game of thrones, you win or die. There is no middle
Cersei Lannister - Season 1, Episode 7
Cersei Lannister, queen of the seven kingdoms and member of the wealthiest
and most powerful family in Westeros, gives this advice to the honorable
Ned Stark, hand of the king (for you non “Thronies”), If only
Ned had been a step ahead of his conniving adversary and less concerned
with honor, he would have realized how well Cersei played the game and
would not have had to pay the ultimate and tragic price.
When considering gamesmanship tactics associated with an injured worker’s
statutory right to a one time change of physician, we are left to contemplate
questions of whether we are playing a zero sum game as suggested by the
renowned villainess or whether there is a middle ground with which approach
to the interpretation of Sect. 440.13(2)(f),
Fla. Stat., that which incorporates notions of honor and integrity.
Certainly, we do not have to concern ourselves with loss of limbs or life,
but rather only the potential for an E/C to forfeit the right to select
and authorize physicians to treat the injured worker. Arguably, issues
associated with the actual five day time period itself are in fact an
all or nothing scenario. Either the E/C complied with 440.13(2)(f), by
timely providing the claimant with the name of a new authorized provider
within the appropriate five day period or the E/C did not.
Once the right to the one time change vests with the claimant, and after
the claimant makes the written request for a change of physician, the
E/C has a mandatory duty to provide a change of doctor. Sect. 440.13(2)(f),
thus gives the E/C an opportunity to retain control over the selection
of the change of physician, that it, if the E/C timely authorizes the
change. If E/C does not, it forfeits control.
An E/C must authorize at least one specific physician within five days
of a claimant’s request. The E/C is not required to set an appointment
but they must do more than acknowledge the request. In sum, the E/C must
inform the claimant of the name of the newly selected physician in order
to retain the right to control the selection of the newly authorized physician.
A couple of recent JCC decisions address the more clear-cut issue involving
the E/C’s timeframe to respond to the request. In both cases, the
JCC found that the E/C did not issue a timely response to the claimant’s
request for a one time change of physician. Thus, the five day response
time expired as a matter of law.
E. Ustarez v. ALDI and Travelers Insurance, OJCC #16-008959, September 22, 2017, the JCC rejected the E/C’s
position that the five day period should not begin until the E/C acknowledges
receipt of the written request for the change (here, the request involved
a petition for benefits). The court held that the five day period begins
with the date of service of the petition for benefits. Here, the claimant
was awarded his selection of a one time change of provider.
P. Bojczuk v. McCormick Trucking and Zurich American Insurance, OJCC #16-030717, July 27, 2017, the E/C did not provide the claimant
with notice of its selection of a physician authorized for a change until
7 days after the claimant filed a petition for benefits seeking a change.
The claimant filed a second petition seeking to select a physician of
his choice. The JCC found the claimant’s initial request via the
1st petition was not confusing, ambiguous, or obscure, and thus, the E/C
lost its right to select the doctor.
Before the E/C forfeits its right to select the change in authorized provider,
one must consider whether the request itself provided sufficient notice
to the E/C or whether the claimant’s gamesmanship tactics prevented
the E/C from understanding that the written request was just that - a
clear, unobscured written request for a change versus an underhanded attempt
to deceive the E/C so that the claimant can hand pick his own doctor.
Gonzalez v. Quinco Electrical, 171 So.2d 153 (Fla. 1st DCA 2015).
As such, arguably there is still some middle ground when determining whether,
under the totality of the circumstances, the claimant’s written
request was sufficient to provide the E/C with proper notice of the one
time change request. Other questions arise as to when a claimant may refuse
or object to a physician selected by an E/C in a timely manner. Of note,
recent case law resolved prior controversy as to whether the physician
offered by the E/C must be within the same specialty as that of the treating
RetailFirst Insurance Co. and Servpro of S.E. Tampa v. Davis, Case No. 1D16-2310, (Fla. 1st DCA, January 23 2017), the JCC held that
after the E/C did not timely respond to the claimant’s request,
the claimant was not entitled to change his authorized family practice
physician to an orthopedist of his own selection. The court noted that
claimant’s interpretation of the statute would allow a claimant
to select a specialist “wholly unsuitable for the course of treatment”,
thus beyond the specialty of the established physician, as well add a
new physician rather than a change from the originally authorized physician.See also,
Zekanovic v. American II. Corp. and Gallagher Bassett Services, Inc., Case No. 1D 16-3669, February 7, 2017).
Another recent JCC decision further delves into the issue as to the meaning
of same “specialty”. In
L. Myers v. Pasco County School Board and Johns Eastern Co. Inc./Pasco County, OJCC #17-014019, December 11, 2017, the JCC held that the E/C’s
timely offer of a neurosurgeon instead of an orthopedic physician to treat
the claimant’s lumbar injuries met the statutory condition of being
within the same specialty. Here, the JCC took judicial notice of the fact
that both physicians could provide the same type of treatment for the
claimant’s compensable injuries, to include therapy, interventional
v. non-interventional diagnostic studies, and correct surgery, if necessary.
As per case law which has held that a one-time change is within the same
“specialty”, the JCC found that “specialty” should
be extended to the treatment of a condition and that the claimant’s
compensable back condition could be appropriately treated by both an orthopedic
surgeon or a neurosurgeon. The timely provision of the appropriate physician
fell within the objective of a self-executing provision of benefits to
injured workers as opposed to the “nit-pickiness of a title of specialty”.
Often times, a physician timely selected by the E/C as a one-time change
provider will thereafter decline to provide treatment for the injured
worker for a number of reasons. Such a scenario may result in a claimant
refusing to see the next alternative physician or physicians offered by
the E/C, even though the E/C’s initial response to the claimant’s
one time change request was in fact timely. In reviewing a number of recent
JCC decisions as set forth below, there seems to be a general consensus
that if the initial response to the change is timely, there is no waiver
in the E/C’s right to continue to select the change of physician.
J. Hicks v. Ripa & Associates, LLC, and Gallagher Bassett Services, Inc., OJCC # 17-012639, October 6, 2017: Here, the physician which the E/C timely
selected in response to the claimant’s request for a one time change
refused to see the claimant. Material issues existed as to the reason
the physician refused to treat the claimant. Thus, the JCC denied the
claimant’s motion for summary final order as it appeared the E/C
had attempted to provide the claimant with a timely change of physician.
I. Flores v. City of Bartow and Commercial Risk Management, Inc., OJCC # 16-24401, October 6, 2017: Here, the E/C timely named a physician
of its own choosing in response to the claimant’s request for a
change of physician. The JCC denied the E/C’s motion for summary
final order as there were unresolved factual questions as to when the
selected doctor was timely “provided” by the E/C. The claimant
argued that the E/C must act with due diligence in scheduling an appointment
with the change of physician.
M. Clelland v. Highlands County School Board and Ascension Ins., OJCC # 16-028092, September 25, 2017: Here, the E/C timely offered a
change of physician who later advised that he would not provide treatment
to the claimant. The E/C offered another change of physician but claimant
thereafter sought to obtain treatment with a physician of his own choosing.
The JCC noted that while the act of just naming a physician may be sufficient
for authorization purposes, the totality of the circumstances showed that
the E/C acted appropriately in timely notifying the selected doctors and
thus the E/C did not forfeit its right to select the change of doctor.
B. Brown v. Lowes Home Center and Sedgwick CMS, OJCC #16-005554, August 24, 2017: Here, again, the E/C timely offered
a one time change of physician. This physician subsequently declined to
provide treatment. The E/C selected a second physician who likewise also
refused to provide treatment. After the E/C selected a third physician,
the claimant opined that the E/C waived its right to select the physician
due to the foregoing delays in authorization of a one time change provider.
The JCC held that the initial offer was made timely and that the authorization
of the subsequent physicians was also handled timely. As such, the claimant
was denied the right to select his own change of physician.
Munoz v. City of Miami Beach and Corvel Corporation, OJCC #: 05-024215, October 23, 2017, the JCC noted that the current statutory
provision for the one time change does not include a right for the claimant
to refuse or dispute the E/C selection, as per a prior version of 440.13(2)(f),
Fla. Stat. The JCC concluded that he was without authority to grant the claimant’s
request for a one time change as the E/C timely provided the claimant
with new one time change of physician.
And what can be taken away from all this, other than to obviously avoid
Ned’s fate and never trust the words of persons like Cersei Lannister.....
Perhaps a hope that our
Factfinders and workers’ compensation practitioners will seek to
avoid any such deceptive and shameful tactics and strive towards more
honorable actions which adhere towards a global practice of professionalism
In the words of Benjamin Franklin, “You may delay, but time will