132 So. 3d 939
Fla. Dist. Ct. App.2014Background
- Claimant requested a one-time change of physician under Fla. Stat. § 440.13(2)(f) on October 22, 2012.
- Employer/Carrier (E/C) attempted to arrange with Dr. Berkowitz (office declined) and later scheduled Dr. Sheikh for November 20, 2012; Claimant said the notice was untimely and refused to attend.
- On November 12 Claimant faxed a petition for benefits (PFB) naming Dr. Ellowitz as her chosen one-time change physician; the E/C rescheduled Dr. Sheikh for December 4 and notified Claimant on November 14.
- Claimant filed the PFB with the Office of the Judges of Compensation Claims on November 14, asserting the E/C failed to authorize a replacement within five days and thus she was entitled to select the doctor.
- The JCC denied Claimant’s choice, holding that Claimant’s right to select a physician expires the moment the E/C authorizes an alternative physician.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claimant may select her one-time change physician when E/C did not timely (within 5 calendar days) authorize a specific physician | Claimant: E/C failed to authorize within 5 days, so claimant may choose the physician named in her PFB | E/C: once it later authorizes a physician, claimant’s right to choose is lost; E/C’s later authorization suffices | Held: Court reversed JCC — claimant entitled to choose because E/C failed to provide an alternative physician within 5 days of the request |
| Whether claimant waived her right to choose by not attending the E/C’s scheduled appointment | Claimant: refusal due to untimely notice does not waive right to select | E/C: failing to name a selection until later and treating with E/C’s selection can constitute waiver | Held: Court held claimant did not waive right where she named a doctor and declined the untimely-scheduled appointment |
| Proper interpretation of the 5-day response requirement (calendar vs. business days) | Claimant: 5 calendar days applies | E/C: (implicit) may argue different timing or sufficiency of notice | Held: Court follows precedent that the 5 days are calendar days; timely response requires informing claimant of replacement doctor, not necessarily scheduling an appointment |
| Standard of review for statutory interpretation | Claimant: JCC misapplied statute | E/C: JCC’s factual/legal interpretation should stand | Held: Review is de novo; statutory plain language controls |
Key Cases Cited
- Sunbelt Health Care v. Galva, 7 So.3d 556 (Fla. 1st DCA 2009) (one-time change is claimant-initiated and not contingent on medical necessity)
- HMSHOST Corp. v. Frederic, 102 So.3d 668 (Fla. 1st DCA 2012) (PFB can constitute the employee’s written request; informing claimant of new doctor suffices as timely response)
- Hinzman v. Winter Haven Facility Ops. LLC, 109 So.3d 256 (Fla. 1st DCA 2013) (the five-day period is counted in calendar days)
- Pruitt v. Southeast Personnel Leasing, Inc., 33 So.3d 112 (Fla. 1st DCA 2010) (claimant can waive the right to select by acquiescing to E/C’s selection)
- Perez v. Rooms To Go, 997 So.2d 511 (Fla. 1st DCA 2008) (courts must first apply the plain language of a statute in statutory construction)
- Harrell v. Citrus Cnty. Sch. Bd., 25 So.3d 675 (Fla. 1st DCA 2010) (claimant entitled to select physician where E/C’s alternative was authorized well after the 5-day period and claimant did not waive selection)