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.