AMANDA HARRELL, APPELLANT,
v.
CITRUS COUNTY SCHOOL BOARD AND FSBIT INSURANCE TRUST, APPELLEES
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Claimant appealed a workers' compensation judge's denial of her request for a one-time change of orthopedist and temporary partial disability benefits. The court affirmed the denial of TPD benefits but reversed the denial of the physician change request, holding that the employer-carrier must name a specific alternative physician within five days of the employee's written request, not merely acknowledge the statutory obligation.
The employer-carrier's compliance with section 440.13(2)(f) requires authorization of at least one specific physician not professionally affiliated with the previous physician within five days of a claimant's written request. A general acknowledgment of the statutory obligation is insufficient. However, competent substantial evidence supported the denial of TPD benefits because the claimant reached maximum medical improvement on September 12, 2008, and temporary disability benefits cease at that point.
[1] An employer/carrier must authorize an alternative physician within five days of an employee's written request for a one-time change of physician.
[2] An employer/carrier's acknowledgment of an employee's statutory entitlement to a change of physician, without naming a specific alternative physician, does not satisfy th…
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Join FLexlaw to unlock all legal intelligence“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 shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request.”
Establishes the statutory requirement for employer-carrier to authorize a specific alternative physician within the five-day period.
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Join FLexlaw to unlock all legal intelligenceOn February 20, 2007, Claimant suffered work-related shoulder and back injuries and was referred to Dr. Lowell as her authorized orthopedic physician.…
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Claimant challenges an order of the Judge of Compensation Claims (JCC) denying her request for a “one-time change” of orthopedist and her claim for temporary partial disability (TPD) benefits through the date of the final hearing. Because competent substantial evidence supports the JCC’s denial of TPD benefits, we affirm on this issue. The JCC erred as a matter of law and fact, however, by denying Claimant’s request for a change in physician. Accordingly, we reverse on this issue.
On February 20, 2007, Claimant suffered injuries to her shoulder and back. The employer/earrier (E/C) provided treatment, and Claimant was eventually referred to Dr. Lowell, an authorized orthopedic physician. On October 9, 2008, Claimant filed a formal grievance form with the E/C requesting, in part, authorization for a change of orthopedist because she was dissatisfied with Dr. Lowell. On October 14, 2008, counsel for the E/C sent Claimant a letter agreeing to authorize a new orthopedist. Specifically, the letter stated in full:
The [E/C] is in receipt of your Grievance regarding [Amanda Harrell]. They have agreed to authorize a one-time *677change of orthopedic doctors. They are in the [process] of scheduling that appointment and you will be advised of the date and time of the appointment under separate cover. If you have any questions, please do not hesitate to contact me.
Subsequently, on October 28, 2008, the E/C sent a second letter to Claimant advising Claimant of her appointment with Dr. Parr on November 14, 2008.
On November 19, 2008, Claimant filed a petition for benefits seeking, in part, authorization of Dr. Simon based on the E/C’s failure to timely authorize a new orthopedic physician. The E/C defended against the claim by arguing it sent a timely letter to Claimant authorizing Claimant’s request for a “one-time change” in orthopedist.
In an order dated June 4, 2009, the JCC denied Claimant’s request for a change in orthopedic physician, finding the industrial accident was not the major contributing cause (MCC) of Claimant’s symptoms. Section 440.13(2)(f), Florida Statutes (2006), provides in pertinent part:
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 shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is com-pensable and medically necessary.
We have previously held that “the use of the word ‘shall’ in ... section 440.13(2)(f) means that this one-time change is mandatory, regardless of whether the initial authorized doctor opines that a compensable accident is no longer the MCC of a claimant’s need for treatment.” Providence Prop. & Cas. v. Wilson, 990 So.2d 1224, 1225 (Fla. 1st DCA 2008). Likewise, this change is mandatory “regardless of the E/C’s position as to either the change of physician or the new physician’s treatment.” Dawson v. Clerk of Circuit Court-Hillsborough County, 991 So.2d 407, 409 (Fla. 1st DCA 2008). Accordingly, the JCC erred in denying Claimant’s request for a change of orthopedic physicians based on the finding that the work-related accident was not the MCC of Claimant’s need for treatment.
In the order, the JCC made factual findings regarding the E/C’s purported authorization for a change in orthopedic physicians. Specifically, the JCC found “Claimant requested authorization for a change in orthopedics on October 9, 2008,” and that the E/C “advised Claimant’s counsel on October 14, 2008, that Dr. Parr was being provided as Claimant’s one-time change in physicians.” No competent substantial evidence supports this latter finding.
The E/C’s October 14, 2008, letter, quoted above, makes no mention of Dr. Parr or any other physician authorized to treat Claimant. Rather, the letter simply states that the E/C “agreed to authorize a one-time change of orthopedic doctors.” The record demonstrates Claimant was not advised of Dr. Parr’s authorization until October 28, 2008 — nineteen days after Claimant’s October 9th written request. Because the E/C failed to authorize a new physician within five days of Claimant’s written request, the E/C failed to comply with the requirements of section 440.13(2)(f).
Section 440.13(2)(f), Florida Statutes (2006), specifically states that “[t]he *678carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request.” (emphasis added). To timely respond to a claimant’s request, an E/C is not required to schedule an appointment with the newly authorized physician. See Dorsch v. Hunt, 15 So.3d 836 (Fla. 1st DCA 2009) (explaining E/C is not required to actually schedule an appointment to comply with its statutory duty to furnish medical treatment at claimant’s request). Based on a plain reading of the statute, an E/C is required, however, to authorize at least one specific physician within five days of a claimant’s request.
Simply acknowledging a claimant’s statutory entitlement is not sufficient. See Great Am. Indem. Co. v. Williams, 85 So.2d 619, 622 (Fla.1956). Allowing an E/C to comply with its statutory duty by generally acknowledging its statutory obligation to provide a change would emasculate the statute and the five-day time period. As such, compliance with section 440.13(2)(f) requires an E/C to name at least one physician not professionally affiliated with the previous physician within five days of a claimant’s written request.
Here, in its letter dated October 14, 2008, the E/C merely “agreed to authorize a one-time change” of physicians. The E/C failed to authorize a specific alternative physician within the five-day time period. The record demonstrates that the E/C did not advise Claimant it selected Dr. Parr until October 28, 2008 — nineteen days after Claimant requested a new physician. Consequently, Claimant was entitled to select her own physician. See § 440.13(2)(f), Fla. Stat. (2006). Therefore, the JCC erred in denying Claimant’s request for a change of orthopedic physician, and this portion of the order must be reversed.
Claimant’s second argument on appeal concerns the JCC’s denial of TPD benefits from September 13, 2008, through the date of the final hearing. The JCC accepted the unrefuted evidence that Claimant reached maximum medical improvement (MMI) on September 12, 2008, and, consequently, denied TPD benefits beyond that date. Competent substantial evidence supports the JCC’s finding that Claimant reached MMI on September 13, 2008. Therefore, competent substantial evidence supports the JCC’s denial of TPD benefits from that point through the date of the final hearing. See § 440.15(2)(a), Fla. Stat. (2006) (“Once the employee reaches ... the date of [MMI], ... temporary disability benefits shall cease....”). Because Claimant provides no factual or legal basis to reverse the JCC’s findings on this issue, we affirm.
Based on the foregoing, we AFFIRM the JCC’s denial of TPD benefits. We REVERSE that portion of the order denying Claimant’s request for a change of orthopedist and REMAND for proceedings consistent with this opinion.
WEBSTER, PADOVANO, and ROWE, JJ., concur.
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Debrah Gadol v. Masoret Yehudit, 132 So. 3d 939 (Fla. 1st DCA 2014)…nd twenty-two days after an employer/carrier authorized an alternative physician, where the claimant did not attend an appointment scheduled with the employer/carrier’s choice, does not constitute such a waiver. See Harrell v. Citrus Cnty. Sch. Bd., 25 So. 3d 675 (Fla. 1st DCA 2010) (holding “Claimant was entitled to select her own physician” where E/C named onetime change 19 days after claimant’s request, and claimant named her selection of doctor). It follows that Claimant’s naming her selection here twent…
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Pruitt v. Se. Pers. Leasing Inc., 33 So. 3d 112 (Fla. 1st DCA 2010)…, 489 So. 2d 186 (Fla. 1st DCA 1986) (holding that claimant acquiesced in E/C’s deauthorization of previously authorized physician by her silence and utilization of alternative treatment). We recognize that in Harrell v. Citrus County School Board, 25 So. 3d 675 (Fla. 1st DCA 2010), we explained that it is not enough for the E/C to simply acknowledge the employee’s statutory entitlement to a one-time change in physician or for the E/C to agree to authorize a new physician without actually selecting the phys…
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Jennings v. Habana Health Care Ctr. & Gallagher Bassett, 183 So. 3d 1131 (Fla. 1st DCA 2015)…servicing agent communicates the name of the physician who is authorized to treat or evaluate to the claimant or the claimant’s attorney. See Lord v. Santa Rosa Corr. Inst., 135 So. 3d 1170, 1171 (Fla. 1st DCA 2014); Harrell v. Citrus Cty. Sch. Bd., 25 So. 3d 675, 678 (Fla. 1st DCA 2010) (holding medical benefits were furnished untimely where the “E/C did not advise Claimant it selected Dr. Parr until October 28, 2008”). See also Bustamante v. Amber Constr. Co. 118 So. 3d 921, 922 (Fla. 1st DCA 2013) (holdin…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Great Am. Indem. Co. v. Doretha Williams, 85 So. 2d 619 (Fla. 1956)
- Fowler v. Escambia Cnty. Sch. Bd., 991 So. 2d 407 (Fla. 1st DCA 2008)
- Providence Prop. & Cas. & Certified HR Servs. v. Wilson, 990 So. 2d 1224 (Fla. 1st DCA 2008)
- Dorsch, Inc. v. Hunt, 15 So. 3d 836 (Fla. 1st DCA 2009)