The Florida First District Court of Appeal Has Again Interpreted Section 440.13(2)(F) Fla. Stat., The “One Time Change” Statute, To Permit an Injured Worker to Select Their Own Physician When an Alternate Physician Was Not Timely Provided

Written by: Rayford H. Taylor, Esq.

An employer/carrier must aggressively pursue obtaining an appointment with the newly authorized physician or risk having the injured worker select the alternate physician.  While we do not know what period of time is acceptable, we know that taking longer than 50 days from the request for a physician to the appointment of an alternate physician may be too long.  That can be difficult to accomplish if the new authorized treating physician does not timely respond or there are other delays which are beyond the employer/carrier’s control.  Nevertheless, employer/carriers must show they exhausted every reasonable method to have the injured worker scheduled to see an alternate physician or risk losing that right.

The case of St. Lucie Public Schools v. Alexander, ____ So.3d, _____, 1D20-2266 (Fla. 1st DCA, June 16 2021) addressed a situation wherein the employer/carrier provided an injured worker with the name of an alternate physician two days after receiving the request.  The employer/carrier notified the doctor that he was authorized and sent the medical records to the physician for review seven days later.  The adjuster contacted the doctor’s office seventeen days after that, but did not get a response.  The adjuster arranged for a nurse case manager to contact the doctor’s office five days later, but was advised two days after that the doctor had declined to treat the injured worker.

The nurse case manager contacted another physician to treat the injured worker that day and that doctor agreed to provide treatment four days later.  The nurse case manager notified the injured worker’s counsel of the appointment, which was scheduled approximately two weeks later, which was the first available date.  The injured worker declined that physician and asserted she had the right to choose her own one-time change.  The JCC agreed and ruled the employer/carrier had forfeited the right to select an alternate physician.  The District Court of Appeal affirmed the JCC’s ruling.

As a result of this decision, we now know that notifying an injured worker of a scheduled appointment with an alternate physician to occur within 50 days may result in the employer/carrier forfeiting the right to select an alternate physician under the one-time change statute.  The case of City of Bartow v. Flores, 301 So.3d 1091 (Fla. 1st DCA 2020) had previously indicated a delay of 56 or 58 days deprived the employer/carrier of the right to select the one-time change physician.

The Flores case has been accepted by the Florida Supreme Court as a case of great public interest and the Employer/Carrier’s Initial Brief is due no later than July 12, 2021.

For more information on this issue, or for other workers’ compensation issues, please contact Rayford H. Taylor, Esq., at rtaylor@hallboothsmith.com.