THE UPDATE - ONE-TIME CHANGE IN PHYSICIAN — SAME NOT SIMILAR PHYSICIAN



Amanda Mitteer Bartley

AMANDA MITTEER BARTLEY focuses her practice on civil litigation, and primarily workers’ compensation litigation defense, on behalf of insurance companies and employers. Ms. Bartley has also secured clients in need of general liability defense and represented numerous carriers and employers in the representation of all areas of workers’ compensation. Ms. Bartley helps her clients by working closely with them to achieve positive outcomes. Her legal strategies include an emphasis on...

“A Claimant who sustains a compensable injury is entitled to a one-time change in treating physician as an absolute right if a written request is made during the course of treatment.” Zekanovic v. Am. II, Corp., 208 So.3d 851, 852 (Fla. 1st DCA 2017) citing the one-time change in physician provision per Florida Statute Section 440.13(2)(f).  
 
In a recent case, Myers v. Pasco County Sch. Bd., 2018 Fla. App. LEXIS 7729 (Fla. 1st DCA June 4, 2018,) the Florida 1st DCA addressed the Claimant’s appeal from a summary final order of the Judge of Compensation Claims denying her request for a one-time change in physician. In the underlying case, Ms. Myers had requested a one-time change from her orthopedic surgeon. The employer/carrier authorized a neurosurgeon pursuant to Ms. Myers' request. As the Claimant had a compensable back problem and both orthopedists and neurosurgeons treated back injuries, the Judge of Compensation Claims found that the employer/carrier had complied with the statutory requirement in timely providing a one-time change in physician. The Claimant appealed same.
 
The Florida 1st DCA stated that, “Section 440.13(2)(f) requires that the one-time change be made with a physician who practices in the ‘same specialty’ as the originally authorized doctor.” Id. citing Zekanovic, 208 So.3d at 852. “A physician who provides similar services in a different specialty does not qualify as a doctor in the ‘same specialty’ because—quite simply—‘same’ is different than ‘similar.’” Id. citing Clare v. Lynch, 220 So.3d 1258, 1261 (Fla. 2nd DCA 2017) (“It is clear that the legislature intended that specialists form the ‘same specialty’ be required as corroborating experts in medical malpractice litigation. While providers from ‘similar’ specialties may have been previously permitted, they are not permitted any longer…The trial court’s ruling in this case, which effectively resurrects the prior statutory language by crediting an affidavit from a provider in a ‘similar’ specialty, constitutes a clear departure from the essential requirements of the law that cannot be countenanced.”)
 
Therefore, the Florida 1st DCA held in Myers that the originally authorized orthopedic surgeon and the employer/carrier authorized neurosurgeon did not practice in the “same specialty.” It thereby reversed the JCC’s decision in denying the claimant’s request for a one-time change in physician, attorney’s fees, and costs, and remanded same for further proceedings in accordance with its decision.
 
If a claimant submits a written request for a one-time change in physician or uses the language “request for an alternate physician pursuant to F.S. Section 440.13(2)(f)” (which some claimant’ counsels write in an attempt to trick you,) you will need to ensure that you are responding to same within five days and authorizing a physician within the exact same specialty, not a similar specialty.  
 
Amanda Mitteer Bartley focuses her practice on civil litigation, and primarily workers’ compensation litigation defense, on behalf of insurance companies and employers. Ms. Bartley has also secured clients in need of general liability defense and represented numerous carriers and employers in the representation of all areas of workers’ compensation.
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Ms. Bartley works out of Chartwell Law's Fort Myers office and can be reach at abartley@chartwelllaw.com or (239)-489-1911.