What Constitutes Provision Of An Alternate Physician In Florida?

Written by: Rayford H. Taylor, Esq.

The First District Court of Appeal (First District) in City of Bartow v. Flores, 1D18-1927 (May 29, 2020) has certified a question of great public importance to the Florida Supreme Court on the issue of when a workers’ compensation carrier has “provided” an alternate physician pursuant to F.S. 440.13(2)(f).  The dispute in this case was over whether the employer/carrier (E/C) complied with the statute.  The judge of compensation claims (JCC) held the E/C failed to comply with F.S. 440.13(2)(f) (2015), the “one-time change provision” and awarded authorization of a claimant-selected alternate physician.

The Claimant sustained a compensable work injury and was authorized to treat with a neurologist.  Claimant’s counsel later requested a change in physician within the same specialty.  The following day, the E/C’s attorney acknowledged the request and advised Claimant’s counsel that the E/C was authorizing an alternate physician, and that the treating physician was no longer authorized.  The E/C further informed Claimant’s counsel that details regarding the appointment would be forthcoming under separate cover.

Multiple subsequent communications occurred between the parties as a result of the Claimant inquiring about the status of the appointment for the alternate physician.  Claimant’s counsel filed a Petition for Benefits requesting a “one-time change” as previously requested and designated a third physician as the Claimant’s alternate physician selection asserting the E/C had not provided a proper response within five days from the request for the change.

Approximately 56 days after the E/C’s receipt of the one-time change request, the Claimant was advised there was an appointment scheduled with the alternate physician for a date which was then 63 days from the date of the request.  Claimant’s counsel responded that the Claimant would not attend the appointment.  The E/C defended the petition by asserting the one-time change provision had been satisfied in that it had notified the Claimant of the alternate physician within one day of receiving the request.

At the hearing on the petition, the Claimant stipulated that the E/C timely responded within five days to his request for a change.  However, they argued that the other portion of the statute had not been met because an appointment was not scheduled and was therefore not “provided” as required by the statute.  The JCC agreed and granted the Claimant’s request for a one-time change to the physician of his choice.  At trial, evidence was presented by the E/C that attempts to contact the alternate physician were made, but that the E/C was not able to coordinate an appointment with the alternate physician until 56 days after the Claimant’s request.

The First District concluded that the issue was what satisfies the E/C’s obligation under section 440.13(2)(f) to “provide” an alternate physician or forfeit its right of selection.  The Appellate Court found the statute imposed a twofold duty on the part of an E/C if it wanted to retain the right to have selection of physician.  The first responsibility was to appoint an alternate physician within five days, and the second was to timely schedule an appointment with that physician for the Claimant.

The First District upheld the JCC’s ruling and went on to note that the question of whether an E/C timely “provides” an alternate physician is a fact-based question to be determined by the jcc.  Interestingly enough, the Court noted that factors that would be relevant in whether or not an E/C timely “provided” an alternate physician would be such issues as geographical availability of physicians; office policies of individual physicians; requirement of medical record review by a physician prior to accepting a new patient; efforts of the carrier; urgency of injured worker’s medical condition; and treatment needs of the injured worker, among other factors.

The First District had held an E/C was not required to schedule an appointment within five days to retain the right to select the physician.  However, the Court has now construed the statute as a two-step process in which an E/C could lose control over physician selection if a jcc finds that an E/C did not “provide” an alternate physician in a timely manner.  That theoretically makes the appointment of a physician as a one-time change a disputed issue of fact in every case where the claimant contends they did not receive an appointment timely.

The dissent in this case argued the Court misapplied the statute, and there was no requirement of timely provision such that an E/C loses their control over physician selection. It remains to be seen if the Supreme Court will accept this case as one which it considers to be of great public importance.  However, it is safe to assume there will be additional litigation over the issue of whether or not an E/C timely “provided” a physician when an alternate physician is requested by the injured employee.

For more information regarding the implications of this ruling, please contact Rayford H. Taylor at rtaylor@hallboothsmith.com.