246 So. 3d 1278
Fla. Dist. Ct. App.2018Background
- Claimant (Laura Myers) injured on August 26, 2016 and sought a one-time change of treating physician under Fla. Stat. § 440.13(2)(f).
- Claimant originally treated with an orthopedic surgeon and requested a one-time change during the course of treatment.
- Employer/Carrier (Pasco County School Board and John Eastern Co.) authorized a neurosurgeon instead of another orthopedic surgeon.
- Claimant petitioned the JCC arguing the authorized neurosurgeon did not satisfy the statute’s requirement that the replacement be in the “same specialty.”
- JCC denied the petition, reasoning that “specialty” should be read according to types of conditions treated (e.g., both orthopedics and neurosurgery treat back injuries).
- The First District Court of Appeal reviewed the JCC’s statutory interpretation and reversed, finding the statute requires the replacement physician to practice in the same specialty as the originally authorized physician.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the one-time change must be to a physician in the same specialty as the originally authorized doctor | Myers: statute entitles claimant to a one-time change to a physician in the same specialty as the original treating doctor | E/C: statute permits a replacement from a similar specialty if the specialists treat the same condition (e.g., back injury) | Reversed JCC; replacement must be in the same specialty as original physician |
| Whether authorizing a neurosurgeon satisfies a requested change from an orthopedic surgeon | Myers: neurosurgeon is not the same specialty as orthopedics and thus is not an acceptable substitute | E/C: neurosurgery and orthopedics both treat back problems, so neurosurgeon is acceptable | Held for Myers: neurosurgeon is in a different specialty and does not satisfy the statute |
| Whether JCC’s statutory interpretation improperly broadened “same specialty” to mean “similar specialty” | Myers: JCC misapplied statutory text by expanding “same” to mean similar | E/C: broader reading is defensible because it reflects clinical overlap | Court: JCC erred; “same” is distinct from “similar” and statute controls |
| Whether claimant is entitled to attorney’s fees and costs after denial of the one-time change | Myers: denial of statutory right entitles claimant to fees/costs | E/C: denial was proper so fees not warranted | Court reversed denial and remanded, vacating associated denial of fees/costs |
Key Cases Cited
- Zekanovic v. American II, Corp., 208 So. 3d 851 (Fla. 1st DCA 2017) (one-time change is absolute right if requested during treatment and must be to same specialty)
- Retailfirst Ins. Co. v. Davis, 207 So. 3d 1035 (Fla. 1st DCA 2017) (replacement physician must practice in same specialty as originally authorized physician)
- Clare v. Lynch, 220 So. 3d 1258 (Fla. 2d DCA 2017) (statute requires same specialty; providers from similar specialties no longer suffice)