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Workers ’ Compensation Section Chairs : AnthonyCortese – AnthonyV . Cortese-AttorneyatLaw , IreneM . Rodriguez – IreneM . Rodriguez , P . A ., Ya ’ SheakaWilliams – Eraclides , Gelman , Hall , Indek , Goodman
The Workers ’ Compensation Law Section scheduled a lunch seminar in March on Daubert objections , and is in the process of putting some of the materials from that seminar onto the Hillsborough County Bar Association website in the worker ’ s compensation section . These resources will likely be available by the time this article is published . In the meantime , there was an important decision reaffirming the rule that an employer / carrier ( EC ) forfeits the right to choose the physician when a one-time change is requested in writing by a claimant , unless the EC responds in a timely manner and provides the authorized alternate physician without unreasonable delay in acquisition of an appointment date . City of Bartow v . Flores , 301 So . 3d 1091 ( Fla . 1st DCA 2020 ).
The Order in Andrews v . McKim & Creed , No . 1D21-427 ( February 1 , 2023 ), “ respectfully ,” but expressly refused , to follow the Flores precedent , arguing that the precedent misconstrued the statute , before also attempting to distinguish Flores . The First District reversed , pointing out that a disagreement that a Judge of Compensation Claims may have with a decision from the First District does not relieve the Judge from the duty to follow the decision .
The primary question was whether the failure of the EC to authorize a one-time change within 5 days of the written request by the claimant gave the claimant the right of choice over the one-time change doctor . The claimant sent a written request , which was received by the EC on June 20 , 2019 , but the EC never responded . On July 2 , 2019 , the claimant filed a Petition for Benefits ( PFB ) asserting entitlement to a one-time change to a doctor of his choice . Twentyseven days later , the EC filed a response , agreed to the change , named Dr . Feiertag , and set an appointment for the claimant . The claimant did not attend the appointment and voluntarily dismissed the PFB , but later filed another PFB for authorization and payment of an appointment for evaluation and treatment with the doctor of claimant ’ s choice , Dr . Rouch . The order by the JCC denied the request for authorization of Dr . Rouch , and “[ r ] espectfully ” declined to follow the Flores decision . The First District reversed the entire order as well as expressly and firmly reversing the refusal to follow Flores .
Three arguments that the EC also raised in Andrews were disposed
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of quickly by the First District . One was that the claimant waived the right to choose their doctor by their delay . The second was that by withdrawing the first PFB , the claimant also withdrew the request for a one-time change . The third was that because the claimant saw Dr . Rouch once before the hearing , the claimant had an additional duty to prove that evaluation and treatment by Dr . Rauch was reasonable and necessary and causally related to the workplace injury before Dr . Rouch could be authorized as the one-time change doctor . Because the claimant had not asked for the one visit to be paid for by the EC , the First District held the third defense was inapplicable , and the failure to properly respond and authorize an appointment in response to the letter of June 20 , 2019 , caused the waiver of the EC ’ s right to choose the one-time change doctor . As such , the specific delay and withdraw of the PFB did not affect the EC ’ s waiver of the right to choose . n
Author : Anthony V . Cortese – Anthony V . Cortese , Attorney at Law
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