Case Law Update – June 17, 2019

ONE TIME CHANGE OF TREATING PHYSICIAN

Marie LaFleur v. The Arbor Holding Company/United Wisconsin Insurance, No. 1D18-0381 (Fla
1st DCA June 12, 2019)

In this case, the claimant requested a one-time change of physician pursuant to Fla. Stat. 440.13(2)(f). The claimant was seeking a change from her authorized physician who specialized in physical medicine and rehabilitation. Within 5 days of the date of the claimant’s written request for the one-time change, the E/C authorized an anesthesiologist.

It was the claimant’s position that because the E/C did not authorize a physician in the “same”specialty as the previously authorized physician, she had the right to select the identity of the doctor who would serve as her one-time change of physician. JCC Frank Clark denied the claimant the right to select the identity of her one-time change physician apparently based on the theory that the anesthesiologist would provide similar treatment as the prior authorized treating physician.

The First DCA reversed JCC Clark’s decision based on the fairly recent authority in the case of Myers v. Pasco County School Board, which held that a one-time change must be in the “same” specialty as the previously authorized physician and not simply a physician who provides similar services in a different specialty. The First DCA held that the E/C’s authorization of an anesthesiologist within 5 calendar days of the claimant’s request for a one-time change did not
satisfy its statutory obligation to provide a physician in the “same” specialty as the previous authorized physician who specialized in physical medicine and rehabilitation. Because the E/C failed to authorize an alternate physician who practiced in physical medicine and rehabilitation within 5 days of the written request, the claimant then had the right to select the physician of her choice. The Court reiterated its position in Myers that a physician who provides services in a different specialty does not qualify as a doctor in the “same specialty” stating that “because – quite
simply –‘same’ is different than ‘similar’”.

Practical Application

This case reiterates prior case law and makes very clear that whenever a claimant requests a onetime change, in order for the E/C to control the identity of the new physician, the new doctor selected must practice in the exact same specialty as the previously authorized physician.

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