The First District Court of Appeal finds, because of its unreasonable delay, the employer failed to provide the alternate physician and competent substantial evidence existed to support the factual finding.
The claimant sustained a compensable work injury in 2015 and was authorized to treat with Dr. Henkel, a neurologist. On June 20, 2017, claimant’s counsel sent a letter requesting a change within the same specialty. A response was provided by the carrier within five days indicating a date and time of an appointment. The following day, the attorney for the employer acknowledged the request and advised claimant’s counsel that the employer was authorizing a different doctor, Dr. Mary Ellen Shriver, and that Dr. Henkel was no longer authorized.
Between June 28 and July 19, the parties communicated regarding the status of the appointment with Dr. Shriver. Then a petition for benefits was filed on July 19, requesting a one-time change, as previously requested on June 20, and named Dr. Koebbe as the alternate physician.
On August 16, 2017, 56 days after receipt of the request, the claimant was advised of an appointment with Dr. Shriver scheduled for September 11 (which is 63 days from the date of the request). The claimant’s attorney responded that they would not attend the appointment and advised the employer to refrain from rescheduling until the issue was addressed at a final hearing.
The employer filed a motion for summary final order. The judge denied the motion, finding there were mixed questions of law and fact.
At the final hearing, the claimant stipulated that the employer had timely responded within five days. No witnesses were called, but the employer’s attorney asserted that “as an officer of the court,“ she could establish that her office contacted Dr. Shriver’s office on June 23 and that numerous calls were made on June 24 and June 25 to acquire an appointment date. The defense attorney further stated that other calls were made and that the records were sent for review by the doctor and ultimately an appointment was made.
The judge entered a final order, granting the claimant’s request for a one-time change of his choice. On a subsequent motion for rehearing and to vacate the final order, a second hearing occurred to address due process arguments. The judge entered an amended final order, which is the subject of this appeal. The judge again ruled in the claimant’s favor for authorization of Dr. Koebbe. The judge held, although the employer provided authorization, they failed to timely secure an appointment.
On appeal, the First District Court of Appeal indicated that the issue on appeal was “what satisfies the employer’s obligation under section 440.13 (2) (f) to ‘provide’ an alternate physician or forfeit its right of selection.” The issue between the parties stems from the language of the statute, which says the carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within five days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employer forfeits the right of selection.
The First DCA affirmed the judge, finding, as a result of its unreasonable delay, the employer failed to provide the alternate physician and competent substantial evidence existed to support this factual finding. However, the court certified the following as a question of great public importance:
Whether an employer’s duty to timely furnished medical treatment under section 440.13(2)(f), which includes a claimant’s right to a one time change of physician during the course of such treatment pursuant to section (2)(f), is fulfilled solely by timely authorizing an alternate physician to treat the claimant or whether – in order to retain its right of selection after timely authorizing the alternate physician to treat the claimant – the employer must actually provide the claimant an appointment date with the authorized alternate physician?
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