In a recent court decision in the case of Bustamante v. Amber Construction Co. and American Interstate Insurance Co., the First DCA held that mere authorization of a change in physician is not enough to avoid the claimant partaking in the self-help nature of Florida Statute 440.13. Specifically, in this case, the claimant requested a one-time change in physician which the employer/carrier timely authorized. Unfortunately, the employer/carrier did not notify the claimant who the physician would be within the required five-day time limit. The carrier merely indicated within that five-day time that they would send notes to another institute to see if a doctor would assume treatment. Although the adjuster then immediately sent authorization to the doctor, they never sent this correspondence to the claimant or his attorney advising which doctor at the institute had in fact been authorized for treatment. Accordingly, the claimant sought treatment on his own and the First DCA held that this was appropriate because a specific doctor was not named.
This case is very important because, as we know, for older dates of accidents or more complex date of accidents, it is sometimes difficult to locate a physician willing to take a claimant on. In this case, the adjuster testified that he did not know within the five-day requirement to respond if his selection for change of physician would agree to take the claimant. Accordingly, because the claimant was not informed of the name of a specific physician until after the five-day period that had been authorized, the Court held that there was no timely authorization by the employer/carrier. The Court referred to Harrell v. Citrus County School Board, 25 So.3d 675 (Fla. 1st DCA 2010) wherein it held that based on the plain reading of the statute, an employer/carrier is required to authorize at least one specific physician within five days of a claimant’s request.
Based on this case, it appears that the DCA has extended that prior ruling to indicate that an employer/carrier must name a doctor even if the employer/carrier does not know if the doctor will agree to treat the claimant in order to avoid the claimant from partaking in self-help. This can cause some difficulty in cases where it is a problem locating a physician willing to take the claimant on as a patient. Accordingly, in those cases, it may behoove the employer/carrier to have a list of physicians that could be potential alternatives in any particular case so when a request comes in, a letter can automatically go out with that physician’s name on it. This will then allow the employer/carrier the time necessary to actually contact the physician, gather information and for the physician to determine whether they will accept the patient. If the physician does not accept the patient, a letter should immediately go out upon learning of this with the next physician who is on the list being named in the letter, until such time as the employer/carrier is able to locate a physician willing to treat a claimant.
If you have any questions regarding this case, please do not hesitate to contact our offices.
Barbi L. Feldman
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