“When you play the game of thrones, you win or die. There is no middle ground”-
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.
In 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.
In 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. See, 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 physician.
In 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.
Lastly, in 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 and integrity.
In the words of Benjamin Franklin, “You may delay, but time will not”.