Case Law Update -June 4, 2018

ONE-TIME CHANGE OF TREATING PHYSICIAN

Laura Myers v. Pasco County School Board, No. 1D17-5457, Fla 1st DCA (June 4, 2018)

In this case, the claimant requested a one-time change from her orthopedic surgeon. In response, the employer/carrier authorized a neurosurgeon. The claimant filed a PFB alleging that the authorization failed to meet the statutory requirements. However, JCC Rosen denied the PFB reasoning that the term “specialty” is broader than the “specialty of the physician” and “should be extended to” the types of conditions the doctor treats. JCC Rosen reasoned that because orthopedic surgeons and neurosurgeons both treat back injuries and because the claimant had a compensable back problem, the E/C’s authorization was in compliance with the statute.

The First DCA reversed Judge Rosen’s finding. The Appellate Court held that a physician who provides services in a different specialty does not qualify as a doctor in the “same specialty”. The First DCA indicated that the neurosurgeon authorized by the E/C did not practice in the “same specialty” as the originally authorized orthopedic surgeon. As a result, the Court reversed JCC Rosen’s Order denying the claimant’s claim for a one-time change and the associated denial of the claim for attorney’s fees and costs. The First DCA remanded back to JCC Rosen who will presumably issue an Order indicating that the E/C did not timely authorize a one-time change of physician who practices in the same specialty and as a result, the claimant is entitled to select the new orthopedic surgeon.

Practical Application:

The Myers case makes it clear that all one-time change requests require the authorization of a physician who practices in the same specialty as the original treating physician. As a result, if the claimant has requested a one-time change from an orthopedic, only another orthopedic physician will be appropriate.

As a result, adjusters need to be diligent not only in being aware of the 5-day requirement, but also must be certain to authorize a one-time change within the exact same specialty and not a similar specialty.

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

wcwyatt@fla-esq.com

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

rmpotter@fla-esq.com

Brian G. Winger, Senior Associate – ext. 220

bgwinger@fla-esq.com

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

Joseph A. Bayliss, Partner – ext. 201

jbayliss@fla-esq.com

Jerome B. Blevins, Partner – ext. 205

jblevins@fla-esq.com