Case Law Update – July 2015

Exception To One-Time Change 5-Day Rule

Victor Gonzalez v. Quincy Electrical, Inc., Fla 1st DCA Case No. 1D14-5395 (July 15, 2015)

In this case, the claimant’s attorney, Roland Tan, Jr., made a written request for a one-time change of physician which was “buried within” a Notice of Appearance that was two pages in length. The request was on the second page of the Notice.

Three weeks prior to the filing of the Notice of Appearance, the claimant’s attorney had already officially “appeared” by the filing of a Petition for Benefits which did not request a one-time change. As a result, the filing of the Notice of Appearance by the claimant’s attorney was not even necessary under the circumstances.

The adjuster did not discover the request for a one-time change until the sixth day after it was filed, and only did so because she learned that this claimants’ attorney had used the same tactic in another pending case. As soon as the adjuster noticed the request, she responded by offering an alternative physician. However, it was not the same doctor that the claimant’s attorney had requested.

The case went to a Final Hearing before JCC Thomas Sculco on the issue of whether or not the adjuster’s response and offer of an alternative physician was timely. JCC Sculco found that under the circumstances, the E/C was deemed to have timely responded even though the response was not within 5 days. He found that under the specific circumstances of the case, the “Notice of Appearance” did not trigger the E/C’s obligation to authorize an alternative physician and that the E/C’s authorization of the physician was valid when made. As a result, the JCC did not allow the claimant attorney’s choice of physician. Interestingly, the claimant’s attorney admitted at the hearing before the JCC that he “took advantage of” his belief that adjusters do not always read in full every document they receive.

The First DCA agreed with the JCC and affirmed his ruling finding that the E/C’s response and selection of physician was timely under the circumstances. The court noted that “a claimant’s request for a one–time change of physician under §440.13(2)(f) should not be inserted into a document that appears on its face to have exclusively another purpose. Rather, the request should be readily apparent, unobscured and unambiguous, to advance the purpose of placing the E/C on notice that such a request is being made in that document.”

The First DCA somewhat “chastised” the claimant’s attorney and indicated that the dispute over the selection of the one-time change “was the result of an attorney’s intentional act that we consider inappropriate sharp practice and gamesmanship”. The court referenced the Oath of Admission to the Florida Bar and the Florida Bar Creed of Professionalism as guiding principles of how an attorney should conduct himself by following the principles of “fairness, integrity, and civility” to opposing parties. The court indicated that the practice of “Catch – 22” or “gotcha” school of litigation tactics will not succeed.

Practical Application:

The Gonzalez case makes clear that claimant attorneys’ underhanded tactics of trying to “sneak by” a request for a one-time change so that the adjuster will not timely respond within five days will not succeed. As a result, although adjusters should remain vigilant to discover all requests for a one-time change and respond timely, in the event a claimants’ attorney “buries” a request for one-time change in a document, it is good to know that the adjuster’s choice and selection of the identity of the physician will most likely not be compromised. Based upon the strong cautionary verbiage used by the First DCA, we can hopefully anticipate that claimants’ attorneys will stop using this type of tactic in the future. However, in the event a request for a one-time change is discovered after the five days, adjusters should still immediately respond by offering a physician as soon as they discover the request.

Please feel free to contact any of our workers’ compensation attorneys listed below if you wish to discuss this case and its application to your claims. You may reach us at the telephone numbers or e- mail addresses listed below:

Fort Lauderdale/East Coast Office: (954) 462-4304

Walter C. Wyatt, Partner – ext. 218

Robert M. Potter, III, Partner – ext. 222

St. Petersburg/West Coast Office: (727) 322-1739

Joseph A. Bayliss, Partner – ext. 306