At its inception, the workers’ compensation statute was designed to balance the needs of the employer and the rights of the worker. However, over the years, the rights of the employee and the injured worker have slowly been eroded by insurance and employer special interest groups. The most recent sweeping changes occurred in 2003. One of the changes was pertaining to an injured workers’ right to request a one time change of physician pursuant to section 440.13(2)(f) Fla. Stat. Prior to 2003, the insurance carrier was required to provide a selection of at least three non-affiliated doctors for the injured worker to review and make a selection. Following the 2003 changes, the right to make the selection was given to the insurance carrier so long as they choice was made within 5 days following receipt of a written request by the injured worker. After the expiration of the 5 days, the insurance carrier waives the right to choose and the choice switches to the injured worker.
Recently, the 1st District Court of Appeals issued two opinions that are essential to the right to request a change in doctor. In Hinzman v. Winterhaven Facility Operations LLC d/b/a/ Consulate Health Care of Winter Haven and Gallagher Bassett Services, Inc., 109 So. 3d 256 (Fla. 1st DCA 2013), the Court ruled that the five days the insurance carrier has to provide a doctor refers to consecutive calendar days, as opposed to business days. Thus, a written fax sent on a Friday, leaves the insurance carrier until Wednesday to choose a new doctor. This puts the pressure on the adjuster to act fast.
Then, on August 1, 2013, in Bustamante v. Amber Construction Company and American Interstate Insurance Company, 1st DCA 13-1118, the Court ruled that the insurance carrier must do more than just send records to the new physician to effect authorization and a change. The carrier must provide an actual name to the injured worker and that unilateral notice to a doctor or faciltiy is insufficient.
While this might seem like a minor decision, the shifting of control of medical treatment to the injured worker can be critical. If you are thinking of requesting a change, or have already submitted a written request for a change, but not received a new doctor, contact us today for a free consultation. At Michles & Booth, attorneys Brian Carter and Antonio Bruni represent injured works across the Florida Panhandle from Pensacola to Tallahassee. Contact them today if you have any questions about your worker’s compensation claim.
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