What's Hot in Workers' Comp, Vol. 24, No. 5, May 2020

Denial of choice of one-time change physician affirmed. Misconduct finding reversed and remanded, and instruction to reconsider claim for temporary partial disability benefits.

First District Court of Appeal affirms judge’s denial of the claimant’s selection of one-time change physician but reverses and remands the judge’s finding of misconduct with instructions to re-consider the claim for temporary partial disability benefits.

Krysiak v. City of Kissimmee, et al., Case No. 1D18-5241, (1st DCA 2020)

One-Time Change

The claimant timely named his selection for a one-time change provider and expressly objected to the employer’s option, indicating that he planned to seek treatment with his selection under the self-help provision. The claimant then attended two appointments with the employer’s selection. The claimant testified he had no choice but to attend appointments with the employer’s untimely selection of a one-time change in provider because he lacked the money to pay for treatment with an unauthorized provider under the self-help provisions of the statute.

The court found that the claimant waived his right to choose his provider since his actions— attending two appointments with the employer’s selection—contradicted his prior objections and express intentions to seek treatment under the self-help provision. The District Court of Appeal affirmed the judge of compensation claims’ decision and rejected the claimant’s argument that, having once objected, he can never acquiesce to the employer’s selection. The court held the claimant should have, but did not, inform the employer that his treatment with its selection was “under protest” in order to preserve his right to selecting his own provider, otherwise it is waived.


The employer argued the claimant committed misconduct by violating its policy on substance abuse when he purchased alcohol while on duty, for which the claimant was written up. The claimant repeatedly missed work and was a no-call/no-show for several days in a row. The employer sent the claimant for testing when he finally returned to work. Upon his return from testing, the supervisor told the Human Resources representative, the claimant “does not look ready to work.” He was terminated after a second violation and a positive drug and alcohol test.

Misconduct is an affirmative defense, and the employer has the burden of proving sufficient behavior to disqualify an employee from receiving benefits. The court distinguished the issues of whether the employer had cause or the right to terminate the claimant’s employment versus whether the employer proved the claimant’s termination was based on acts of misconduct defined in the workers’ compensation statute F.S. § 440.02(18). However, the employer did not produce any evidence regarding test results or admissible evidence interpreting those results. Therefore, the First District Court of Appeal found there was no competent, substantial evidence to support the judge’s denial of temporary partial disability benefits due to misconduct without evidentiary support of the claimant’s intoxication.



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