Can 'Jake' Authorize a Change in Physician?
Wednesday, May 1, 2013 | 0
I enjoy the creativity in advertising. I have to remind myself that they are all just trying to push a product, one which I would not likely even consider without their advertising. I am often struck by the humor in advertisements. I find that the product name and purpose rarely sticks with me, but the humor I remember. I recently read the Court's decision in Hinzman v. Winter Haven Facility Operations, Case 1D12-2382 (Fla. 1st DCA, Feb. 18, 2013). The date on that will show you how far behind I get in my reading sometimes.
Hinzman addresses Fla. Stat. §440.13(2)(f), concluding that the statute is self-explanatory. The opinion does not quote the statute, so here it is:
(f) 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. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within five days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary. (Emphasis added).
The critical language is the “five days” language. In Hinzman, the claimant argued that this meant “calendar days” and the Employer/Carrier argued that this meant “business days.” The court sided with the “calendar days” argument, noting that the statute’s language is “clear and unambiguous” and that therefore the court “should rely on the words used” and should not “speculate as to the Legislature’s intent.” The court also noted that the Legislature specifically used “business days” elsewhere in Fla. Stat. §440.13. The court does not cite those examples, but they are quickly located, see Fla. Stat. §440.13(2)(e) (specific objections to the proposed course of treatment by the close of the tenth business day); Fla. Stat. § 440.13(3)(b) (“by the close of the third business day”), Fla. Stat. §440.13(3)(d) (“by the close of the third business day after receipt”), Fla. Stat. §440.13(4)(a) (“ by the close of the third business day following the first treatment”).
The court concludes that if the Legislature had intended Fla. Stat. §440.13(2)(f) to provide for five “business days,” then the Legislature would simply have said so as it did in these other provisions.
This made me think of a funny commercial (still not positive of the product or the company), in which a man is standing in his dark living room on the phone saying “yeah, I am married; does that make a difference?” as his wife comes down the stairs and accuses him of being on a secretive call. He professes that he is talking to “Jake” and the wife takes the phone and asks what “Jake” is wearing, and upon speaking to “Jake” and hearing he is wearing khakis, she says “she sounds hideous” or something to that effect. Our “take away” is supposed to be that Jake’s company provides such expansive service that we can expect to speak with them 24/7 if we do business with them. I have heard and seen similar commercials. There is a series for one insurance company where singing their jingle will purportedly cause your agent to appear before you, much like Barbara Eden in "I Dream of Jeannie." These are entertaining ads.
Back to Fla. Stat. §440.13(2)(f). It is possible that a request for a change in physicians could come to the insurance carrier or third-party administrator at 4:55 on a Friday afternoon. Saturday comes and that is one day. Sunday passes the second day. Monday is the third day. Returning to work Monday, the adjuster needs to jump on this request as time is running out. Tuesday is the fourth day and Wednesday is the fifth. By the end of Wednesday, or arguably by 4:55 Wednesday if a “day” is 24 hours, “the carrier shall authorize an alternative physician.” The adjuster in this scenario has really just three days to accomplish this task. Of course with Memorial Day, Labor Day, Martin Luther King day (which are on Mondays) and other holidays that may fall on Mondays or Fridays, this time could be reduced effectively to two days. A request on the Wednesday before Thanksgiving would require authorization by the end of the following Monday. Really just one day afforded in that instance.
Carriers and employers need to understand that these constraints exist. They may wish to consider establishing processes that allow “Jake” or others like him to run with this change of physician request in the wee hours of the morning or on weekends and holidays. A 24-hour-per-day "Jake" department may be needed. Perhaps there is even room in the process for some “what if” planning in which consideration is given early on as to what physician change would be provided “if” such a request were made?
Whatever the reaction, the Hinzman logic is hard to argue with. If the Legislature had intended otherwise, they could have said so. It may make returning to work on the Monday after Thanksgiving as a claims adjuster quite a treat.
David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.
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