Jeffrey P. Gale, P.A. // Limited Medical Choices for Claimants in Florida Workers’ Compensation Cases

Florida Statute 440.13 governs the provision of medical care under Florida’s workers’ compensation system. For the most part, the Employer and its insurance carrier — “E/C” — control the provision of medical care.

The most dominant aspect of this control is the right to select the injured worker’s treating doctors. Unfortunately, most of these doctors suffer from the incurable “Don’t Bite the Hand that Feeds You” disease. All too frequently, the opinions expressed by these doctors benefit the E/C to the detriment of the Claimant.

On rare occasions, E/C loses control of the medical. The most frequent situation is where the worker has suffered substantial injuries requiring emergency surgery in the hospital. The natural sequence is that the surgeon, especially if he or she maintains a private practice, will remain the primary physician after the patient is discharged from the hospital. While this doctor is not hand-picked by E/C, he or she is also not hand-picked by the Claimant.

440.13(2)(c) gives E/C a “reasonable time period” to provide initial medical treatment and care. If E/C fails to provide the initial treatment and care, Claimant “may obtain such initial treatment at the expense of the employer.” Even still, E/C can regain control of the medical under this provision. In Carmack v. Department of Agriculture, 31 So.3d 798 (Fla. 1st DCA 2009), Claimant suffered a compensable accident, but E/C refused to authorize medical care for psychiatric issues arising from leg and back injuries. Claimant sought care with a psychiatrist and filed a Petition for Benefits seeking authorization of past and future care with the psychiatrist. The Judge of Compensation Claims (JCC) ordered E/C to pay for treatment through the date of the final hearing (workers’ compensation trial), but not for continuing treatment with the particular doctor. Instead, E/C was able to choose another psychiatrist. The JCC’s ruling was upheld on appeal.

440.13(2)(f) may be the only true opportunity for the Claimant to select a doctor who will remain authorized in the future. Unfortunately, it takes a mistake by E/C for the opportunity to arise. The pertinent parts of this section read as follows:

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 compensable and medically necessary.

In Zekanovic v. American II, Corp., 208 So.3d 851 (Fla. 1st DCA 2017), E/C failed to respond within five days to Claimant’s request under 440.13(2)(f) for a one-time change of physician. Claimant then filed a petition for benefits requesting authorization of a particular doctor as his one-time change. The JCC found that Claimant was entitled to his one-time change, but because Claimant had not actually obtained treatment with the physician of his choice prior to the entry of his ruling, the JCC found that E/C retained the right to choose Claimant’s one-time change. Claimant appealed and the First District Court of Appeal reversed the JCC’s ruling.

We request a one-time change of physician in many of our workers’ compensation cases. Knowing the consequence of failing to respond timely — losing control! — E/C rarely fails to respond timely. When it responds timely, it gets to select the one-time change doctor. I can count on the fingers of one hand the number of times E/C has failed to respond timely. Coincidentally, one of those times happened just recently. Interestingly, because the oversight was by a friendly lawyer rather than the disagreeable adjuster in the case, I have offered to work with the lawyer to select an alternative both of us can agree on. However, because I won’t agree to one of the usual suspects, we may not reach an agreement. In the meantime, my client is scheduled to see the doctor we helped her select at the end of the month. Opposing counsel understands that if we can’t agree on another doctor by then, E/C will have to authorize our doctor.