208 So. 3d 851
Fla. Dist. Ct. App.2017Background
- Claimant (Zekanovic) requested a one-time change of treating physician by faxed written grievance on December 23, 2015, seeking to replace authorized orthopedist Dr. Pagano with pain specialist Dr. Hassan.
- Employer/Carrier (E/C) did not respond within the five-calendar-day period required by section 440.13(2)(f); their response came on January 5, 2016.
- Claimant filed a petition for benefits on January 13, 2016, asking that Dr. Hassan be authorized.
- E/C declined to authorize Dr. Hassan and continued Dr. Pagano as authorized; Claimant had not yet seen Dr. Hassan or any other physician of his choosing by the hearing date.
- The JCC found E/C’s response was untimely (entitling Claimant to select a physician) but held that because Claimant had not actually obtained treatment, E/C retained the right to select the one-time change and could do so without regard to specialty.
- The district court reviewed statutory interpretation de novo and reversed the JCC’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Effect of E/C’s failure to respond within 5 days to a written one-time change request | Untimely E/C response entitles Claimant to select and authorize the one-time change | Even if response was untimely, Claimant’s failure to actually attend treatment surrenders selection and lets E/C choose | Court: Untimely response vests selection right in Claimant immediately upon expiration of five days; claimant retains that right until E/C authorizes an alternative or claimant waives it by acceding or attending appointments. |
| Whether E/C may choose a physician of any specialty for the one-time change | Claimant: Selection (by either side) must be within same specialty as current treating physician | E/C: Could select physician without regard to specialty | Court: One-time change must remain within the same specialty regardless of who makes the selection. |
| Whether claimant’s failure to seek treatment before entry of order nullifies selection right | Claimant: No — right exists upon E/C’s untimely response even if claimant has not yet seen new physician | E/C: Yes — claimant’s inaction allows E/C to regain selection | Court: Rejected E/C view; claimant’s right accrues on expiration of five days and persists until claimant either accepts E/C’s selection (e.g., attends appointment) or E/C timely authorizes another. |
| Interpretation standard and remedy | N/A — statutory construction governs | N/A | Court: De novo review; reversed and remanded for proceedings consistent with statute and precedent. |
Key Cases Cited
- Lombardi v. S. Wine & Spirits, 890 So. 2d 1128 (Fla. 1st DCA 2004) (standard of review on statutory interpretation)
- Providence Prop. & Cas. v. Wilson, 990 So. 2d 1224 (Fla. 1st DCA 2008) (claimant entitled to one-time change as absolute right when written request made)
- Hinzman v. Winter Haven Facility Operations LLC, 109 So. 3d 256 (Fla. 1st DCA 2013) (untimely response by E/C gives claimant right to select physician; discussion of calendar vs. business days)
- Gadol v. Masoret Yehudit, Inc., 132 So. 3d 939 (Fla. 1st DCA 2014) (claimant’s selection right vests upon expiration of five days and persists until E/C authorizes alternative or claimant waives right)
- Harrell v. Citrus Cty. Sch. Bd., 25 So. 3d 675 (Fla. 1st DCA 2010) (claimant retains selection right despite delayed E/C authorization)
- Perez v. Rooms To Go, 997 So. 2d 511 (Fla. 1st DCA 2008) (statutory construction begins with plain language)