The problematic request for a one-time change in treating physician can severely impact a case if not handled properly. As new case law continues to modify the acceptable manner of appropriately and timely responding to these requests, adjusters have greater burdens in appropriately responding. Below are some tips to help preserve the EC’s right to designate the new treating provider.
Timeline for Responding
Pursuant to Fla. Stat. § 440.13, Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Furthermore, the carrier shall authorize the alternative physician within 5 days after receipt of the written request, or the claimant may select the authorized physician.
It is important to note that case law has interpreted the 5 day rule as five calendar days, not 5 business days. Thus, if the EC does not respond to a claimant’s request for a change in his treating provider within 5 consecutive days, the claimant may designate his new treating doctor. We recommend immediately contacting your defense counsel of any request referencing 440.13. Your defense counsel can provide recommendations for conservative physicians in the specialty and venue.
Bear in mind that many of the attorneys who make a request for a one-time change will bury that request in a longer document. For example, certain claimant lawyers will send a lengthy letter discussing various aspects of the case, with a brief request in the 4th paragraph asking for a new treating doctor. They will sometimes set forth this request in a Petition for Benefits in an effort to lull the adjuster into thinking that he or she has 30 days within which to respond.
If the doctor designated by the EC as the new treating provider refuses to accept the claimant as a patient, the EC must authorize a different provider within 5 consecutive days of knowledge of the first doctor refusing to treat. In a recent JCC order, the Court recognized that the EC retained the right to select a new physician upon the initial refusal of the selected one-time change physician, but only if the EC authorized and notified the claimant of the new one-time change physician within 5 days of knowledge of the declined authorization.
In the event that the EC misses the deadline, you may still preserve this right if the claimant failed to advise of his selection of the preferred doctor in his written request. If the EC misses the 5 day deadline, the EC may still elect the one-time change physician as long as the EC designates an alternate physician prior to the claimant’s selection. Therefore, do not assume that since the 5 day deadline has passed that the claimant will be entitled to select the physician of his choosing. Instead review the request for determination of whether the claimant designated his one-time change physician within the initial request. If the claimant failed to do so, immediately authorize your selection and provide written notice to the claimant.
Requirements for Responding
To properly report the EC’s selection of the one-time change, the EC must actually notify the claimant of its election and specifically designate the authorized physician. It is crucial that the claimant or his attorney be notified directly. Notifying the provider, without notifying the claimant or his attorney, is not sufficient notification and will give the claimant the opportunity to designate the doctor. Furthermore, merely leaving a voice mail message for the claimant has been held to be insufficient notice for purposes of notifying the claimant of the EC’s selection. Use an “all of the above” approach in notifying the claimant and his lawyer of your designation of the new treating physician. Send an e-mail (with return receipt requested), print and fax the email, have defense counsel send a letter, and call to leave a message with opposing counsel or someone in the office.
More concerning is the mandate that the new treating provider be specifically identified by name. Recent case law interpreted Chapter 440.13 to require the EC to respond with the NAME of a physician rather than merely offering a medical group or clinic. This will be important to remember when authorizing a new primary care physician. Long gone are the days of merely offering a walk-in clinic. Now, the failure to name the authorized physician at the walk-in-clinic will allow the claimant to select his one-time change. This clearly poses problems in authorizing a new orthopedist, for example, given the fact that major orthopedic clinics try to balance the patient loads of their treating physicians.
Responding to One-time Change Requests in Denied Claims
Under Section 440.13 (2)(f) Fla. Stat. (2011), a claimant is entitled to a one time change of physician during the course of treatment for any one accident. However, to constitute being “in the course of treatment” the claimant must be receiving authorized treatment for compensable injuries when the demand for the one-time change is made, or else the demand is ineffective. Thus, the one-time change provisions do not apply when the injury has not been deemed compensable either by acceptance by the EC or by adjudication. Recent case law is following this trend and recognizing that there is no entitlement to a one time change where the claim is a total denial.
Our law firm has developed certain techniques that enable an EC to take affirmative steps early in the claim which will forever prevent the claimant from being able to designate his new authorized treating provider. If you are interested, please contact us for an outline of the steps to take that prevent the claimant from ever being able to designate his new treating provider.
Lauren L. Feldman
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