Florida Court Construes One-Time Change of Physician Statute
Where an injured employee sought a one-time change of physician and, within the five-day period designated in § 440.13(2)(f), Fla. Stat., was first given a referral physician and appointment options by the employer/carrier (“E/C”), to which the employee objected because the physician’s office was more than 50 miles from the employee’s residence, the E/C did not lose its right to designate an alternative physician, held a Florida appellate court [Harman v. Merch. Transp., 2021 Fla. App. LEXIS 13033 (1st DCA Sept. 15, 2021)]. While the employee sought approval of treatment by a physician of his own choice, that physician did not accept workers’ compensation patients. The E/C also provided a second alternate physician somewhat closer to the employee’s residence, but the judge of compensation claims ruled that the physician’s office was also unreasonably far from the employee’s office. Under the statute, the appellate court agreed that the choice was still with the E/C.
Background
Harman sustained a compensable burn to his right foot in May 2017, while pressure cleaning with steam. The E/C authorized several doctors, including Dr. Koutsonikolis, an allergist who treated Harman for a rash. On February 7, 2019, Harman made a written request for a one-time change in allergists, from Dr. Koutsonikolis to Dr. Tuer. The next day, the E/C learned that Dr. Tuer no longer accepted “workers’ compensation.” The following day (February 9), the E/C informed Harman of this, authorized Dr. Landman, an allergist who practiced in Aventura, and provided appointment details.
Harman, who lives in Palm Beach, cancelled the appointment with Dr. Landman on grounds that Aventura was too far for him to travel. On February 28, 2019, the E/C, attempting to accommodate Harman, authorized Dr. Landman’s colleague, Dr. Mark, who practices approximately 46 miles and 45-50 minutes away from Harman’s home at a satellite office in Pembroke Pines. The E/C offered to provide transportation at the E/C’s expense, if needed. However, Harman declined to attend the appointment with Dr. Mark, claiming Pembroke Pines was also too far from his home.
Harman filed a petition for benefits (PFB) on February 19, 2019, seeking a one-time change from Dr. Koutsonikolis to Dr. Tuer. In the Uniform Pre-Trial Stipulation filed in June 2019, he asserted the identical claim request. At final hearing, Harman articulated that the sole issue before the JCC was his claim for a one-time change from Dr. Koutsonikolis. However, he acknowledged that Dr. Tuer would not accept workers’ compensation and he did not pursue his authorization. Harman argued that the E/C’s response to the one-time change request was not timely unless the distance to the new doctor was “reasonable,” as calculated from his home and not his workplace.
Employer/Carrier’s Contentions
The E/C defended the PFB on grounds it had timely authorized an alternate physician via Drs. Landman and Mark. The E/C argued that Dr. Mark’s office was only 28 miles from Harman’s place of employment with the Employer, and that Harman had not presented evidence of an alternative allergist within a more reasonable distance to Harman’s workplace or home. The E/C also argued that Dr. Mark was the closest provider that it could locate, in part because of the rarity of allergists in the workers’ compensation system.
JCC’s Order
In the final order, the JCC articulated the sole issue before her as, “the reasonableness of Dr. Mark considering the time/distance travel, which is within the discretion of the [JCC].” She ultimately determined that the travel time and distance to Dr. Mark’s office was unreasonable. She found that the offer of transportation by the E/C did not necessarily render the distance reasonable. The final order granted the request for a one-time change of physician and detailed, “[t]he Employer/Carrier may select an authorized allergist within a reasonable distance from Mr. Harman’s residence.” The JCC granted Harman’s request for attorney’s fee and costs. Harman appealed the portion of the final order that retained the E/C’s right to select the alternate physician, claiming the E/C had lost that right by failing to provide a reasonable selection when he had originally requested the change.
Appellate Court
The appellate court noted that Harman’s request for a one-time change from Dr. Koutsonikolis to Dr. Tuer was never amended despite his concession that Dr. Tuer was not an option. Harman had conceded that the E/C provided an alternate physician within five days of the written request, inclusive of authorization of an appointment as well as additional options. Harman’s only argument was that the provided alternates practiced too far from his home. Furthermore, said the court, Harman never amended his claim for Dr. Tuer to another claimant-selected physician. Nor did he introduce evidence of his chosen allergist practicing within a 50-mile radius who accepted workers’ compensation patients and/or fee schedule payment. The court stressed that ultimately, the JCC awarded the identical claims that were specifically pled and requested—an alternate physician within a 50-mile radius of his home and attorney’s fees and costs. The court also noted that the statute imposed no criteria regarding distance of travel as a criterion for the E/C’s retaining its right of selection. The court affirmed the JCC’s award of an alternate physician of the E/C’s selection.