Beware of the Hinzman Holiday Trap!

With the Thanksgiving holiday approaching, beware of claimant lawyers using the Hinzman case to secure authorization of undesirable physicians.

In February 2013, the First DCA issued its opinion in Hinzman v. Winter Haven Facility Operations. This case holds that the 5 day rule pertaining to the claimant’s one-time change in treating physicians is 5 consecutive days, not 5 business days. If an employer/carrier does not respond to a claimant’s request for a change in his treating provider within 5 consecutive days, the claimant may be able to designate his new treating doctor.

There are certain attorneys who represent injured workers who will undoubtedly use the Thanksgiving long weekend to catch employer/carriers off guard. If the claimant’s attorney requests a change in the treating provider on the Wednesday before Thanksgiving, the employer/carrier will have only one full business day to respond to this request. Be watchful for requests for a one-time change during the pending holiday week. A letter, facsimile, or email may be enough to trigger the employer/carrier’s obligation. Some claimant attorneys bury the request for a new treating physician in a Petition for Benefits, so review all new PFBs very carefully. A request for a one-time change should rise to the top of your list of priorities.

If this deadline is missed, make every effort to offer the new treating physician as soon as possible. The reason for this suggestion relates to case law which indicates that even if the employer/carrier is late in responding to the claimant’s request for a one-time change, the claimant cannot compel authorization of his new treating provider if he has not actually treated with the doctor of his choice before the employer/carrier makes its offer. In other words, if the employer/carrier misses the 5 day deadline but offers a new treating physician before the claimant sees the doctor of his lawyer’s choosing, the claimant may not be permitted to designate his new treating physician. The law is not quite as strong on this point as would be ideal, but this technique is helpful if the 5 day deadline is missed.

While the rest of us are looking forward to the company of friends and family during the Thanksgiving holiday, certain lawyers who represent injured workers will undoubtedly be scheming ways to use the “gotcha” technique permitted by Hinzman. Don’t get caught!

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