Claimant does not have Right to Choose his Change in Doctors

Wednesday, May 5, 2010 | 0

By Michael Rabinowitz
Banker Lopez Gassler

Will the debate over the change in doctor provision ever end? I bet the Florida 1st District Court of Appeals wishes it would.  We have yet another decision regarding this seemingly plain-written statute. This time, the case involves the question of a claimant who requests a change in doctors, never chooses the change, and then voluntarily attends the employer/carrier's choice doctors.

The question this time is: Does claimant have an absolute right to choose his change in doctors?

In Pruitt v. Southeast Personnel Leasing, Inc., the claimant filed a petition seeking a change in doctors. At mediation, the E/C agreed to provide the change and authorized a physician of their choosing. After a few treatments with this new doctor, claimant was put at maximum medical improvement and determined the compensable accident was no longer the major contributing cause. The case proceeded to trial and claimant argued that he should get an alternate doctor of his choice since the E/C did not timely respond to his request for a change within five days.

The judge of compensation claims ruled that the mediation agreement absolved the E/C. The 1st DCA took this a step further and analyzed section 440.13(2)(f) the statute that gives claimants the right to a change in doctors. While the court recognizes that claimants have an absolute right to a change in doctors, claimant’s only have the option to choose that doctor.

In particular, look at the language of s. 440.13(2)(f):

“If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician. . .”

The key words in this quote are “may select.”  Compare that with the preceeding sentence which states the “carrier shall give the employee an opportunity for one change of physician during the course of treatment for any one accident.”

Despite recent cases where the E/C did not respond timely to a request and claimant chose the doctor, or the E/C responded but not with a doctor’s name, this case is different in that claimant actually went to the E/C’s choice of doctor. I’ve argued this for years: that if a claimant acquiesces and attends a medical appointment, either a change in doctors or referred to specialist, he cannot turn around and object to the E/C choosing the doctor.

If you really object to the doctor you should not have gone in the first place.

To read the opinion, go here:
http://www.workcompcentral.com/pdf/2010/misc/pruittdecision042710.pdf

Michael Rabinowitz is a defense attorney for Banker Lopez Gassler in Tampa. This column was reprinted with his permission from the firm's blog, http://workerscompblog.wordpress.com/about/