FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
of Accident: February 7, 2014.
appeal from an order of Judge of Compensation Claims. Stephen
L. Rosen, Judge.
McCabe, Longwood, and Joey D. Oquist, St. Petersburg, for
P. Vecchio of Vecchio, Carrier, Feldman & Johannessen,
P.A., Lakeland, for Appellees.
workers' compensation appeal, Claimant argues that the
Judge of Compensation Claims (JCC) erred in finding that the
Employer/Carrier (E/C) retained the right to select his
one-time change of physician, even though the E/C agreed they
failed to respond to his request within five days of its
receipt, as required by paragraph 440.13(2)(f), Florida
Statutes (2013). For the following reasons, we agree.
parties are in agreement on the relevant underlying facts. On
December 23, 2015, Claimant faxed a formal grievance to the
E/C and to their attorney requesting a one-time change in
physician from Dr. Pagano, his authorized treating orthopedic
surgeon. The E/C did not respond to the request until January
5, 2016. On January 13, 2016, Claimant filed a petition for
benefits requesting authorization of Dr. Hassan, a pain
management physician, as his one-time change. The E/C
declined to authorize Dr. Hassan; rather, Dr. Pagano remained
authorized. As of the date of the hearing, Claimant had not
sought treatment with Dr. Hassan or any other a physician of
appealed order, the JCC found that Claimant was entitled to
his one-time change of physician because the E/C failed to
timely respond to his request. Nevertheless, because Claimant
had not actually obtained treatment with a physician of his
choice prior to the entry of the appealed order, the JCC
found that the E/C retained the right to choose
Claimant's one-time change "without regard to that
physician's specialty in medicine."
resolution of this issue requires statutory interpretation,
our review is de novo. See Lombardi v. S. Wine &
Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA
2004). Under paragraph 440.13(2)(f), a claimant who sustains
a compensable injury is entitled to a one-time change in
treating physician as an absolute right if a written request
is made during the course of treatment. See Providence
Prop. & Cas. v. Wilson, 990 So.2d 1224, 1225 (Fla.
1st DCA 2008). If the E/C fails to respond to that request
within five calendar days, the claimant may select the
physician and that physician shall be considered authorized
if the treatment provided is compensable and medically
necessary. See Hinzman v. Winter Haven Facility
Operations LLC, 109 So.3d 256, 257 (Fla. 1st DCA 2013).
JCC's reasoning here, which is that Claimant's
failure to timely exercise his right to select his physician
returned that right to the E/C, runs afoul of this
court's case law. Most recently, in Gadol v. Masoret
Yehudit, Inc., 132 So.3d 939, 940 (Fla. 1st DCA 2014),
the JCC interpreted the statute "to give the claimant
the right to select his or her change of physician
immediately upon expiration of the 5 days and claimant
maintains that right up until the moment the E/C authorizes
an alternative physician at which time that right is
lost." The Gadol court reversed, holding that
the JCC's interpretation went beyond the plain language
of the statute. Noting that a claimant may waive his or her
right to select the physician if he or she subsequently
accedes to the E/C's choice, the Gadol court
explained the E/C's selection of a physician before or at
the same time as the claimant makes his or her selection does
not constitute a waiver by the claimant, so long as the
claimant has not attended any appointment scheduled by the
E/C. Id. at 941. See also Harrell v. Citrus Cty.
Sch. Bd., 25 So.3d 675, 677 (Fla. 1st DCA 2010) (holding
that where response to request was untimely, claimant
remained entitled to select her own physician even though the
E/C advised claimant of specific authorization nineteen days
the JCC's pronouncement that the E/C was entitled to
select the one-time change "without regard to that
physician's specialty in medicine" is not in accord
with the plain language of the statute. See Perez v.
Rooms To Go, 997 So.2d 511, 512 (Fla. 1st DCA 2008)
(holding that, when construing statute, courts must first
look to its plain language). This court, in RetailFirst
Insurance Co. v. Davis, No. 1D16-2310 (Fla. 1st DCA Jan.
23, 2017), recently addressed this question and concluded
that, when dealing with a one-time change, the change must be
within the same specialty regardless of who makes the
we note that Claimant submitted his request on December 23,
just prior to the holidays, giving the E/C a little more than
one business day to respond. There is no question that the
request was clear, not obscured, but it nevertheless smacks
of gamesmanship. This illustrates the concerns noted by this
court in Hinzman, 109 So.3d at 257, when contrasting
"calendar" days with "business" days. As
we explained in Hinzman, ...