For the most part, Florida workers involved in industrial accidents have little control over which medical providers are authorized to treat them under the state’s workers’ compensation system. Control of the medical care is mostly held by the employers and their workers’ compensation insurance carriers (E/C). Section 440.13, Florida Statutes lays out the parameters regarding the provision and control of medical care.
Control impacts the nature and quality of medical care received, the receipt of indemnity (money) benefits, and settlement value. Doctors selected by E/C tend to render opinions favoring E/C. Injured workers have limited ability to wrest control of their care from E/C.
440.13(2)(f) lets injured workers ask E/C to authorize another treating doctor. Barring exceptional circumstances, the request can only be made one time in each case. E/C has five days from receipt of the request to select another doctor of its choosing or lose the right. If the selection is not made within the five days, the injured worker, also known as the claimant, gets to select the doctor. This doctor then becomes authorized. This is a big deal.
Neither the statute nor case law are fully clear on the proper procedure for making the request. The statute reads that “Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident,” so we know the request must be in writing. Case law even tells us that the writing can take many forms — Andrews v McKim, 355 So.3d 957, 962 (Fla. 1st DCA 2023):
- Email. Bustamante v. Amber Construction Company, 118 So.3d 921 (Fla. 1st DCA 2013)
- Grievance form. Harrell v. Citrus County School Board, 25 So.3d 675 (Fla. 1st DCA 2010)
- Petition for Benefits. HMSHost Corporation/Gallagher Bassett Services, Inc., v. Frederic, 102 So.3d 668 (Fla. 1st DCA 2012)
- Telefax. Zekanovic v. American II, Corp., 208 So.3d 851 (Fla. 1st DCA 2017)
What’s unclear is to whom the request can or must be sent. The main choices are the insurance adjuster and the carrier’s attorney.
Florida Bar Rule 4-4.2(a) provides as follows:
In representing a client, a lawyer must not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer. Notwithstanding
the foregoing, a lawyer may, without such prior consent, communicate with another’s client to meet the requirements of any court rule, statute or contract requiring notice or service of process directly on a person, in which event the communication is strictly
restricted to that required by the court rule, statute or contract, and a copy must be provided to the person’s lawyer.
In my view, this Rule blocks lawyers from sending the 1x change request to the adjuster of a represented carrier. While the statute requires a written request, it does not mandate that the request be sent to the adjuster. Therefore, notice upon the lawyer should satisfy the statute.
Rule 60Q-6.104 of the Rules of Procedure for Workers’ Compensation Proceedings, instructs attorneys on making their email addresses known. In addition to the lawyer’s email, the list may include assistants’ emails and one specifically for pleadings. To avoid challenges regarding the effectiveness of an emailed 1x change request, the safest route is to send the request to all of the emails listed by the attorney. Moreover, to be doubly safe, the subject line should begin with the words “SERVICE OF OJCC DOCUMENT” in all capital letters followed by the name of the injured worker, employer, and OJCC number, to comply with Rule 60Q-6.108(2)(f), and should include language making it explicitly clear that a 1x change is being requested to avoid any implication of trying to sneak the request past the carrier. See Gonzalez v. Quinco Elec. Inc., 171 So.3d 153 (Fla. 1st DCA 2015).
Given the importance of controlling the medical, most E/C lawyers and their staff are on full alert for 1x change requests. Rarely do they drop the ball by failing to respond within five days. In a request we made last week, emailed to the lawyer and his assistant, the lawyer responded within three hours of the request with the name of another doctor and appointment information.
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