Florida Court Asks State Supreme Court for Guidance on One-Time Change of Physician Rules
Analyzing one of the most contentious provisions within Florida's Workers' Compensation Act — § 440.13(2)(f), Fla. Stat. — which, under certain conditions, grants an injured worker a one-time change of physician, a divided state appellate court held that isn't enough for the employer/carrier (E/C) to provide the name of the new physician within the five-day period specified in the statute, the E/C must also "provide" access to the physician by acquiring an appointment date and informing the worker of that date, if it is to maintain control over the choice of physicians [City of Bartow v. Flores, 2020 Fla. App. LEXIS 7529 (1st DCA, May 29, 2020)]. While the court affirmed the order of the Judge of Compensation Claims (JCC) finding the E/C had failed to comply with the statute because of its delay in getting an actual appointment, the majority certified a question of great public importance and asked the state's supreme court to clarify the issue.
Background
The facts were essentially undisputed. Claimant sustained a compensable work injury in 2015 and was authorized to treat with Dr. Henkel, a neurologist. On June 20, 2017, Claimant's counsel requested, via letter, a change in physician within the same specialty. In the letter, counsel sought communication of the date and time of an appointment within five days. The following day, the E/C's attorney acknowledged the request and advised Claimant's counsel that the E/C was authorizing Dr. Mary Ellen Shriver. Counsel further noted that Dr. Henkel was no longer authorized and that details regarding the appointment would be forthcoming under separate cover.
Between June 28 and July 19, multiple communications occurred between the parties regarding the status of the appointment with Dr. Shriver. Claimant's counsel then filed a Petition for Benefits on July 19, requesting "a one-time change as requested on June 20, 2017" and designating Dr. Koebbe as Claimant's alternate physician selection since the E/C has not provided the response requested within 5 days from the request for the change.
On August 16, 56 days after the E/C's receipt of the one-time change request, Claimant was advised of an appointment with Dr. Shriver for September 11 (63 days from date of the request). Claimant's counsel responded that Claimant would not attend the appointment with Dr. Shriver and advised the E/C to refrain from any resetting until after the issues raised in the petition were addressed at final hearing.
Parties' Contentions
The E/C contended that the language of § 440.13(2)(f), Fla. Stat., was abundantly clear. It had five days to designate a new physician and communicate that choice to Claimant, and it had done so. Claimant countered that naming a new physician without providing an appointment was not a sufficient act on the part of the E/C. The JCC essentially agreed with Claimant and eventually entered an order granting Claimant's request for a one-time change of his choice (i.e., to utilize Dr. Koebbe, instead of Dr. Shriver).
Appellate Court's Decision
The majority analyzed the statute, sentence by sentence, indicating that each sentence of § 440.13(2)(f), Fla. Stat., standing alone, granted a right and/or announced a duty and ramification for noncompliance. The first sentence granted injured workers a right to a one-time change of physician. The second sentence instructed that upon a claimant's exercise of that right, the authorized treating physician was automatically deauthorized. The third sentence detailed that if an E/C "authorizes" the physician within five days of receipt of the written request by a claimant, the E/C retained its right of selection of the alternative physician. The majority interjected that inherently, if an E/C did not timely respond, the right of selection defaulted to the claimant. Lastly, the fourth sentence instructed that despite timely authorization of an alternative physician, the E/C may still forfeit its right of selection by failing to "provide" that alternate physician.
Majority Says Two-Fold Duty on Part of E/C
The majority stressed that the Legislature's deliberate use of different terms in the third and fourth sentences clearly indicated an intent for a two-fold duty on the part of the E/C to retain its right of selection:
- To timely authorize (defined by the Court as naming the alternate physician and informing the claimant, and
- To provide the physician by acquiring an appointment date and informing the claimant.
According to the majority, the interpretation espoused by the E/C was in stark contrast to the overall purpose of Chapter 440: To efficiently deliver benefits to the injured worker. The majority concluded that here, the JCC determined that as a result of its unreasonable delay, the E/C failed to provide the alternate physician. Compelling and substantial evidence supported that factual finding.
Question for Supreme Court
Although the majority affirmed the JCC, it added that in light of the importance of the timely provision of medical treatment and the question of statutory interpretation presented, it certified to the Florida Supreme Court the following as a question of great public importance:
WHETHER AN E/C'S DUTY TO TIMELY FURNISH MEDICAL TREATMENT UNDER SECTION 440.13(2), WHICH INCLUDES A CLAIMANT'S RIGHT TO A ONE-TIME CHANGE OF PHYSICIAN DURING THE COURSE OF SUCH TREATMENT PURSUANT TO SUBSECTION (2)(F), IS FULFILLED SOLELY BY TIMELY AUTHORIZING AN ALTERNATE PHYSICIAN TO TREAT THE CLAIMANT OR WHETHER—IN ORDER TO RETAIN ITS RIGHT OF SELECTION AFTER TIMELY AUTHORIZING THE ALTERNATE PHYSICIAN TO TREAT THE CLAIMANT—THE E/C MUST ACTUALLY PROVIDE THE CLAIMANT AN APPOINTMENT DATE WITH THE AUTHORIZED ALTERNATE PHYSICIAN?
Dissent
Justice Winokur concurred in part and dissented in part. The justice observed:
The majority makes a compelling argument that its interpretation promotes the "spirit" of the workers' compensation law, which requires expeditious provision of medical services for injured workers, by preventing a carrier from "[sitting] on its hands" when it should be attempting to secure medical care for an injured worker. But I find that neither the applicable statute nor controlling case law supports the majority's interpretation, irrespective of its value as good public policy.