One method where the claimant’s attorney can control authorization of physicians is through the five-day rule under 440.13(2)(f). This statute states that where the claimant sets forth his request for his one-time change in treating physician, the employer/carrier must offer an alternative physician within 5 days. If the employer/carrier does not offer an alternative physician within 5 days, the claimant can designate the new authorized treating doctor. This statute has been construed to mean 5 consecutive days, not 5 business days.
Addressing the claim for a one-time change should not be a problem. Carriers need to be diligent and pay careful attention to communications from claimant’s counsel. A letter or facsimile from the claimant’s attorney asking for a one-time change is easy to address.
What many claimant attorneys are now doing, however, is hiding the request for the one-time change in a document where you would not expect it. An attorney may file a Petition for Benefits for TT/TP, and then at the bottom of the Petition where he sets forth the claim for fees and costs, he will also set forth a claim for a one-time change. This makes the request very easy to overlook.
We have heard of claimant attorneys filing a Request to Produce with requests for 30 or more documents. Item #23, for example, sets forth the claimant’s request for his one-time change in treating provider.
I have advised previously about a technique where the claimant submits a very unsophisticated, hand-written document asking for his one-time change. This is often sent via facsimile from the claimant to the carrier. Since no attorney has yet made an appearance on the claimant’s behalf, the adjuster is lulled into complacency by thinking that an urgent response is not needed. What we find out later, however, is that the claimant was coached by his attorney to send his request for a one-time change. The attorney then starts counting the days and designates the authorized treating provider after the employer/carrier inadvertently allows 5 days to pass.
The claimant will occasionally send the facsimile from a Staples or FedEx store, but the facsimile is often sent from the office of the attorney who eventually appears on the claimant’s behalf. We discovered that the claimant is being advised “behind-the-scenes” by his attorney before we ever learn that an attorney is involved.
It is hard estimate how far this will go, and it seems likely that different JCCs will rule in different ways. If the claimant or his attorney send a letter or facsimile simply asking for a new treating physician, but the employer/carrier misses the 5 day deadline, there is not much that can be done about that. With this sort of “gotcha” technique, however, a question arises as to whether legal gamesmanship triumphs over application of the statute.
Look at everything sent from the claimant or his attorney very carefully to make sure that the request for a new treating physician is not carefully hidden. Where’s Waldo? He’s hidden at the bottom of the facsimile cover sheet!
