Andrews v. McKim

CourtCourt of Appeal of Florida (US)
Decision Date01 February 2023
Docket Number1D21-427

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

Date of Accident: August 21, 2018.

On appeal from an order of the Office of the Judges of Compensation Claims. Jack Adam Weiss, Judge.

Michael J. Winer, Winer Law Group, P.A., Tampa, and Kenneth B. Schwartz, Winer Law Group, P.A., Fort Lauderdale, for Appellant.

Steven H. Preston and Lindsey Hicks of Hicks, Porter, Ebenfeld &amp Stein, P.A., Miami, for Appellees.


Jace Andrews (Claimant) appeals an order of the Judge of Compensation Claims (JCC) denying his claim for authorization of Dr. Roush, a physician he selected following the Employer/Carrier's (E/C) disregard of his request for a one-time change under section 440.13(2)(f), Florida Statutes (2018), and finding the E/C's waiver defense was tried by consent. We reverse on both issues as detailed below.

I. Facts

Claimant suffered a compensable accident on August 21, 2018, and benefits under Chapter 440, Florida Statutes, were initiated. On June 20, 2019, Claimant sent a written request to the E/C exercising his right to a one-time change under section 440.13(2)(f). The E/C failed to respond. On July 2, 2019, Claimant filed a Petition for Benefits (first PFB) asserting his entitlement to the one-time change and requesting an enforcement of that right. Twenty-seven days later, the E/C filed a Response acquiescing to the one-time change and naming Dr. Feiertag as the alternate physician, providing Claimant with an appointment date and time. Claimant did not attend the appointment. Subsequently, Claimant voluntarily dismissed the first PFB, explaining later that he did so to avoid litigation because he had concerns about "rocking the boat" with his Employer and missing work. On July 28, 2020, Claimant filed a second PFB (second PFB) requesting authorization, payment, and scheduling of an appointment for evaluation and treatment with Dr. Roush, his chosen alternate physician. Three days later, the E/C wrote to Claimant advising that treatment with Dr. Roush was denied as Dr. Feiertag was the "current authorized one-time change doctor," referencing the prior Response to the first PFB. Before the hearing on the second PFB, Claimant sought an evaluation from Dr. Roush on his own.

At the hearing, Claimant argued that the E/C forfeited its right of selection of the one-time change physician when it failed to respond to his June 20, 2019, written request. Claimant averred that the second PFB merely requested enforcement of his previously accrued right of selection, and that he selected Dr. Roush as his physician. In response, the E/C argued Claimant's voluntary dismissal of the first PFB waived or extinguished his right of selection, and the filing of the second PFB equated to a new request for a one-time change, to which it responded timely (within 5 days).[1] The JCC concluded that because Claimant did not attend the E/C scheduled appointment with Dr. Feiertag, he did not acquiesce to his authorization. Further, the JCC rejected the E/C's argument that Claimant forfeited his right of selection because of the length of time that elapsed between the written request for a one-time change and his selection of Dr. Roush as his alternate doctor. Notwithstanding, the JCC ultimately denied Claimant's request for authorization of Dr. Roush, finding: (1) "Claimant withdrew his request for a one-time change on September 18, 2019, when he voluntarily dismissed his PFB 'in its entirety'"; (2) the second-filed PFB constituted a "new request" for a one-time change and the E/C responded timely; and (3) even if the JCC had agreed with Claimant that he retained the right of selection, Claimant failed to satisfy his burden of proof that the treatment he received from Dr. Roush was both "compensable" and "medically necessary."

Claimant timely filed a motion for rehearing, asserting the JCC erred by: (1) allowing the E/C to raise and argue waiver defenses that were not included in the pretrial stipulation; (2) creating an erroneous additional burden of proof on Claimant to prove medical necessity consistent with a "self-help provision"; and (3) misapplying section 440.13(2)(f) and ignoring precedent set by City of Bartow v. Flores, 301 So.3d 1091 (Fla. 1st DCA 2020). The JCC denied Claimant's request for rehearing, and Claimant then filed thistimely appeal.

II. Analysis

"A JCC's factual findings will be upheld if supported by competent substantial evidence (CSE), regardless of whether 'other persuasive evidence, if accepted by the JCC, might have supported a contrary ruling.'" Flores, 301 So.3d at 1094 (quoting Pinnacle Benefits, Inc. v. Alby, 913 So.2d 756, 757 (Fla. 1st DCA 2005)). However, to the extent an issue of statutory construction is raised on appeal, a question of law is presented, making this Court's review de novo. Id. (citing Palm Beach Cnty. Sch. Dist. v. Ferrer, 990 So.2d 13, 14 (Fla. 1st DCA 2008)).

Once again, we are called to address the “one-time change provision” of section 440.13(2)(f). This analysis encompasses the viability or duration of a claimant's right of selection, once vested.

As required, we look to the statutory language. The "one-time change provision" provides:

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 5 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.

§ 440.13(2)(f), Fla. Stat. (2018).

Grounded by the plain language of the statute, we first review the JCC's determination that Claimant waived his right of selection of the alternate physician by voluntarily dismissing the first PFB and by delaying litigation of the issue. "Waiver and estoppel are affirmative defenses which must be plead carefully or forever waived." Teco Energy, Inc. v. Williams, 234 So.3d 816, 823 (Fla. 1st DCA 2017) (citing McKenzie Tank Lines, Inc. v. McCauley, 418 So.2d 1177, 1180 (Fla. 1st DCA 1982)). Affirmative defenses must also be timely raised by the party seeking to avoid responsibility or consequence. See Fla. Admin. Code R. 60Q-6.113(2)(a). "The party raising affirmative defenses has the burden of pleading and proving them." Williams, 234 So.3d at 823.

Here, the E/C failed to list any affirmative defenses in the PreTrial Stipulation. The E/C did not assert its "waiver/estoppel" defense until the filing of its trial memoranda, just days before the hearing. We agree with Claimant that allowing the affirmative defense of waiver to be raised just prior to hearing was improper and equates to a denial of procedural due process safeguards, including notice and an opportunity to be heard. See Isaac v. Green Iguana, Inc., 871 So.2d 1004, 1006 (Fla. 1st DCA 2004).

We reject the E/C's argument that waiver was tried by consent due to inferences made during argument at hearing. During opening statements, Claimant asserted it was "equally important in this claim if we turn to the Pretrial Stipulation, there is no defense of waiver. There is no defense of the right reverting back. There is no discussion of that at all until the Employer/Carrier's Trial Memorandum." Claimant's counsel further objected as follows: "[s]o again, our first position would be that those defenses really should not be formally entertained by this court because they weren't listed on the Pretrial." Claimant counsel's presentation of an alternative argument, post-objection, to address the E/C's waiver defense did not eviscerate his prior objection as to untimeliness nor equate to acquiescence or consent.

Next, the JCC found that Claimant's act of voluntarily dismissing the first PFB signified his withdrawal of the request for a one-time change. This was error. Section 440.13(2)(f) is void of any reference to the filing and/or maintenance of a PFB to trigger a claimant's right to a one-time change or the E/C's duty to provide one. The plain and unambiguous language of the statute instructs that the five-day window for response is initiated upon the E/C's receipt of a written request for a one-time change. This written request may take many forms such as a letter, a PFB, or other pleading.[2] Here, the written request via letter activated the provisions of section 440.13(2)(f) and the window for response. Subsequently, Claimant filed the first PFB to seek enforcement of his right to a one-time change. He withdrew the first PFB and later filed the second PFB naming Dr. Roush as his physician of choice.

The first PFB was not dismissed with prejudice nor was it a second voluntary dismissal of a PFB requesting the benefit. See Fla. Admin. Code R. 60Q-6.116(2) (the "two-dismissal rule"); Moreno v. Palm Beach Cnty. Sch. Bd., 146 So.3d 530 (Fla. 1st DCA 2014). The voluntary dismissal of a PFB does not necessarily equate to an abandonment of the claims.

In Gadol v. Masoret Yehudit, Inc., 132 So.3d 939 (Fla 1st DCA 2014), this Court rejected the notion that a Claimant waives the right to pick his doctor by doing anything other than acceding to the E/C's...

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