Nothing is more important to a workers’ compensation claimant than being under the care of a fair-minded doctor. Unfortunately, realizing this fundamental right under Florida’s workers’ compensation system can be elusive. This is because Florida law offers employers/workers’ compensation insurance companies (E/C) the opportunity to select all of the injured worker’s treating doctors, 440.13, Florida Statutes (2017), and most of these providers, knowing better than to bite the hand that feeds them, willingly render opinions favorable to carriers. Unwilling providers need not apply.
If the opportunity is properly exercised, the E/C can maintain control of the worker’s medical care throughout the duration of the case. The opportunity can be lost.
Section 440.13(f) requires carriers to give employees the opportunity for one change of physician during the course of treatment for any one accident. If the carrier fails to provide the change of physician within 5 days after the request is made in writing (which includes a Petition for Benefits, see Gadol v. Masoret Yehudit, Inc., 132 So.3d 939 (Fla. 1st DCA 939), and email), the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary. 440.13(f) and Zekanovic v. American II, Corp., 208 So. 3d 851 (Fla. 1st DCA 2017).
The five-day response period in this statute refers to calendar days, not business days. See Hinzman v. Winter Haven Facility Operations LLC, 109 So.3d 256, 257 (Fla. 1st DCA 2013). The response is timely if E/C informs the claimant of a particular doctor’s name within the five days of receiving the request, even though the E/C did not contact the doctor. See HMSHOST Corporation/Gallagher Bassett Services Inc. v. Frederic, 102 So.3d 668 (Fla. 1st DCA 2012); Dorsch, Inc. v. Hunt, 15 So.3d 836 (Fla. 1st DCA 2009); Harrell v. Citrus County Sch. Bd., 25 So.3d 675 (Fla. 1st DCA 2010).
Where the response to the request is untimely, claimant remains entitled to select her own physician even though the E/C later advises claimant of a specific authorization, Harrell, supra, or claimant accedes to E/C’s choice by attending any appointment scheduled by the E/C. Gadol, id. at 941.
While the parties are disputing the selection issue, E/C will not authorize the claimant’s selection. Because not every doctor is willing to treat a claimant without first obtaining authorization from the E/C, the claimant’s choices when this is the situation are to find a doctor who will treat without pre-authorization — payment of this doctor is achieved by securing a court order initiated by filing a Petition for Benefits — or seek authorization of the reluctant doctor by court order. Since it can takes months to secure a court order, the latter option is not always feasible. Not only do injured workers expect care when needed, work status from a medical provider is required to establish entitlement to lost wages. Large gaps in treatment may go uncompensated.
Unfortunately, gamesmanship has infected the workers’ compensation system. Doctor selection is a dominant part of the game.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
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