In a recent case, the First District Court of Appeals in Florida issued an opinion in an appeal involving a claim for authorization of a physician in a worker compensation case between an employee, the Claimant, and the Employer/Carrier (E/C). The Claimant sued the E/C following the E/C disregarding his request for a one-time change under section 440.13(2)(f). The Judge of Compensation Claims (JCC), denied his claim for authorization of the physician and found that the E/C’s waiver defense was tried by consent.
The Claimant suffered a compensable accident on August 21, 2018, and benefits were subsequently initiated. On June 20, 2019, the Claimant sent a written request to the E/C exercising his right to a one-time change under section 440.13(2)(f), and the E/C failed to respond. On July 2, 2019, the Claimant filed a Petition for Benefits (PFB), asserting his entitlement to the one-time change and requesting enforcement of that right. The E/C filed a response agreeing to the one-time change and naming Dr. Feiertag as the alternative physician twenty-seven days after the Claimant filed the first PFB. The Claimant did not attend the appointment and subsequently voluntarily dismissed the first PFB, later explaining that he was concerned with avoiding litigation and “rocking the boat” with his employer. On July 28, 2020, the Claimant filed a second PFB requesting authorization, payment, and scheduling of an appointment for evaluation and treatment with Dr. Roush, his chosen alternative physician. Three days after the second PFB, the E/C wrote to the Claimant, denying treatment with Dr. Roush, stating that Dr. Feiertag was the authorized one-time change doctor.
At trial, the Claimant argued that the E/C forfeited its right of selection of the one-time change physician when it failed to respond to his initial one-time change request. He further claimed that the second PFB was merely a requested enforcement of his previously accrued right of selection, and he was exercising that by selecting Dr. Roush. The E/C argued that the Claimant voluntarily dismissed the first PFB and waived his right of selection. The JCC concluded that due to the fact that the Claimant did not attend the appointment with Dr. Feiertag that was scheduled by the E/C, he did not acquiesce to his authorization. Additionally, the JCC rejected the E/C’s argument that the Claimant forfeited his right of selection due to the length of time between the written request and the selection of the doctor. Regardless, the JCC denied the Claimant’s request, finding that (1) the Claimant withdrew his request, (2) the second PFB was a new request that the E/C responded to in a timely manner, and (3) the Claimant failed to satisfy his burden of proof that the treatment he was seeking reimbursement for was both “compensable” and “medically necessary.”
On appeal, the Claimant argued that the JCC erred by (1) allowing the E/C to raise and argue waiver defenses that were not included in the pretrial stipulation, (2) creating an erroneous additional burden of proof for the Claimant, and (3) misapplying section 440.12(2)(f). The appellate court opinion rejected the E/C’s argument that waiver was tried by consent due to inferences made during the argument at trial. Additionally, the appellate court found that the Claimant’s voluntary dismissal of the first PFB did not automatically extinguish his request for an alternate physician, nor waive the request. Lastly, they found that a Claimant has an absolute right to a one-time change in physician during the course of treatment, siding with the Claimant on all three claims and reversing the lower court decision.
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