First DCA Ends Gamemanship Over One-Time Change
The First District Court of Appeal (DCA) issued an opinion holding that a claimant’s request for a one-time change in his treating physician must be set forth in a direct and obvious way, and that a request for a one-time change that is intentionally hidden does not compel an employer/carrier to act. The First DCA issued its opinion in Gonzales v. Quinco Electrical, Inc. on July 15, 2015.
In this case, the claimant’s attorney filed a Petition for Benefits (PFB). Per the applicable rule of procedure, the PFB perfected his appearance as counsel for the claimant. Nevertheless, he filed a Notice of Appearance 3 weeks later. On the 2nd page of his Notice of Appearance, the attorney set forth his request for a one-time change of treating physician pursuant to section 440.13(2)(f). The attorney admitted that he advanced his claim this way upon his belief that the adjuster would probably not look at the 2nd page of his Notice of Appearance.
The employer/carrier offered an alternative treating physician, but not within 5 days of the Notice of Appearance. The claimant’s attorney asserted that he was therefore allowed to select the new doctor.
The First DCA held that this method of requesting a change in the treating physician was improper, and served to defeat the self-executing nature of the workers’ compensation law. The Court held that this technique delayed the prompt, efficient delivery of benefits. The request for a one-time change was inserted in a document that appeared to have a completely different purpose. The Court held that the request for a one-time change, “should be readily apparent, unobscured, and unambiguous to advance the purpose of placing the employer/carrier on notice that such a request is being made in that document.”
The Court issued a strong rebuke to the claimant’s attorney. The Court characterized his request as gamesmanship and referred to a variety of ethical standards applicable to members of the Florida Bar. The Court held that this surreptitious request for a one-time change was offensive to notions of fairness, integrity, and civility owed to the Court and opposing parties. The Court characterized this type of request as a “gotcha” tactic, and held that this practice delays the provision of benefits while needlessly increasing costs. The First DCA concluded that the Judge of Compensation Claims correctly found that the claimant’s hidden request for a one-time change was legally insufficient and did not obligate the employer/carrier to act.
Analysis: This case puts to rest a particularly obnoxious tactic employed by certain attorneys who represent injured workers. A claimant’s request for a one-time change in his treating physician must now be set forth clearly and obviously. A hidden request for a new treating physician that is contained in a document that appears to be something else does not compel the employer/carrier to act within 5 days.
Many lawyers who represent claimants were openly arguing before the JCC’s that they were indeed attempting to “bury” their request for a one-time change in different documents because that was “all they had.” A handful of claimant attorneys were arguing to the JCC’s that the workers’ compensation law has become so one-sided in favor of employer/carriers that they were entitled to use this sort of underhanded tactic in order to advance their claims. The First DCA rejected this argument.
This opinion does not relieve employer/carriers of their obligation to respond within 5 days of a request for a new treating doctor. An employer/carrier no longer needs to search, however, through every line of every document to determine if a one-time change request is hidden somewhere therein.