Cal Kovens Const. v. Lott, AZ-316

• Decision Date: 18 July 1985
• Docket Number: No. AZ-316,AZ-316
• Citation: 473 So.2d 249,10 Fla. L. Weekly 1752
• Parties: 10 Fla. L. Weekly 1752 CAL KOVENS CONSTRUCTION and United States Fidelity and Guaranty Company, Appellants, v. Jacob LOTT, Appellee.
• Court: Florida District Court of Appeals

Page 249

473 So.2d 249

10 Fla. L. Weekly 1752

CAL KOVENS CONSTRUCTION and United States Fidelity and Guaranty Company, Appellants, v. Jacob LOTT, Appellee.

No. AZ-316.

District Court of Appeal of Florida First District.

July 18, 1985.

Rehearing Denied Aug. 20, 1985.

Robert H. Gregory, Miami, for appellants.

Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal, Susskind, Bloom & DeCastro, Miami, for appellee.

ZEHMER, Judge.

The employer and carrier appeal from an order of the deputy commissioner requiring the carrier to pay the medical bills of Dr. Rech and the transportation expenses incurred by claimant in traveling to see Dr. Rech after the carrier had deauthorized Dr. Rech effective April 4, 1983. Appellants raise two points on appeal. We affirm.

As to the first issue, the employer and carrier contend it was error for the deputy to enter a de novo order after he had vacated an earlier order which had been entered by a predecessor deputy on her last day in office. The case was assigned to the successor deputy after the employer and carrier filed a petition for rehearing which asserted error by the predecessor deputy in requiring that claimant be seen by a physician (a knee expert) in North Carolina.

The proceedings on the petition for rehearing were not reported, and we have no record thereof. The parties, however, filed a stipulation setting forth what transpired at that hearing. According to the stipulation, counsel agreed at the hearing that the successor deputy could vacate the order, listen to the tape recording of the proceedings held before the predecessor deputy, review the evidence presented, and then enter his order. Nothing in the stipulation purports to preclude the successor deputy from entering his own order on all issues based upon a de novo review of the entire record. Since that is what the deputy did, after vacating the first order pursuant to the stipulation, we are not presented, and therefore do not address, the question of the successor deputy's authority, absent stipulation, to entertain a petition for rehearing of an order entered by a predecessor.

As to the second issue, the employer and carrier contend that the successor deputy erred in not recognizing the validity of the carrier's deauthorization of Dr. Rech. Additional facts are necessary for a full understanding of this issue.

Claimant is a thirty-nine year old construction worker residing in Broxton, Georgia. When work became slack, he went to Miami to work a while with the intention of eventually returning to Broxton, where his family remained. While working for the employer, Cal Kovens Construction, claimant stayed with friends in Opa Locka and would go home on weekends. After working in Miami for eight months, claimant twisted his knee by stepping on a pipe on May 11, 1981. He was treated by Dr. Rech, a Miami orthopedic surgeon designated by the employer and carrier, who performed several surgical procedures over a period of time. Claimant made several trips between his home in Broxton and Miami to be treated by Dr. Rech. Each visit, round trip, involved travel of 1,040 miles, and the carrier paid travel expenses of over $5,000.

The following facts were found by the deputy commissioner and are supported by the record. Dr. Rech had been the authorized treating physician for nearly two years, and both claimant and the employer and carrier were apparently well satisfied with the medical treatment claimant was receiving from Dr. Rech. Dr. Rech had performed three operations on claimant, the latest in February 1983. In March 1983, because of the substantial transportation expenses being incurred for claimant's travel from his home in Georgia for treatment by Dr. Rech in Miami, the carrier notified Dr. Rech, claimant, and claimant's attorney that the carrier was seeking new physicians located closer to claimant's home to treat him and that Dr. Rech would be deauthorized after claimant's scheduled visit on April 4, 1983, to reduce travel expenses. Since claimant had not reached maximum medical improvement and was in need of continued orthopedic treatment, the carrier, on April 12, 1983, selected a group of orthopedic surgeons in Jacksonville and notified claimant and his attorney of their names and addresses. Claimant made inquiry about the carrier's recommended physicians, but was not satisfied they would provide suitable treatment. Three days later claimant's attorney filed a claim, back dated to April 12, seeking to continue medical treatment by Dr. Rech. Service of this claim on the carrier constituted notice that claimant was not accepting the new Jacksonville physicians designated by the carrier. Consequently, claimant continued traveling to Miami for treatment by Dr. Rech.

Although claimant, at the request of the employer and carrier, later went to see another Jacksonville physician, he persisted in his claim to continue treatment with Dr. Rech. Some question was raised about Dr. Rech's referring claimant to a specialist in North Carolina or to a clinic in Columbus, Georgia. The employer and carrier never indicated any dissatisfaction with the medical care being rendered by Dr. Rech, and their decision to deauthorize was based entirely on reducing the transportation expenses involved.

The employer and carrier defended the claim for Dr. Rech's medical bills and the travel expenses incurred after April 4, 1983, on the ground that new physicians in Jacksonville had been authorized to treat claimant and he refused to go to those doctors without notification of a reason for refusal. The deputy commissioner held that the employer and carrier were obligated to pay transportation expenses and medical bills of Dr. Rech for treatment after April 4, 1983, to the date of the order "because there was no determination by the Deputy Commissioner that a change in medical provider was in the claimant's best interest, particularly since the other technical requirements of § 440.13(2), Fla.Stat., were complied with, and the employer/carrier did not object to the treatment being provided, but only to the transportation expenses involved." The deputy commissioner's order determined, at least inferentially, that claimant could not be coerced by the employer and carrier to change from his authorized treating physician to new physicians unacceptable to him absent a showing of good cause sufficient to require a change in medical treatment under section 440.13(2). Obviously the deputy commissioner did not consider the curtailment of travel expenses, alone, to be sufficient good cause, for the deputy's order further stated:

However, I do find that it would [be] in the claimant's best interest in the future, that he have medical care available to him, which is closer to his residence, not because of the transportation expense involved, but because the nature of his injury is such that it would be better for his medical needs to have a physician readily available to provide treatment who is not so far distant. To accomplish this, the parties are advised, in keeping with the self-executing provisions of the Florida Workers' Compensation Law, to agree among themselves as to a suitable physician to provide medical treatment to the claimant closer to his home in the future. Failing that, the parties are free to request a change of physician and apply for a hearing in a manner provided for in § 440.13(2), Fla.Stat.

It is perfectly clear, therefore, that the deputy commissioner ruled that the burden was upon the employer and carrier to obtain an order authorizing the appointment of a specific new treating physician if the claimant objected to the deauthorization and substitution sought to be imposed by the carrier to save travel expenses. Bearing in mind that this is not a case of initial selection of a physician by the employer, but an attempt to deauthorize a treating physician who had been treating claimant since the accident and had performed a third surgery only a month before the unilateral deauthorization, the deputy commissioner quite correctly sought to weigh the carrier's asserted reason for compelling the change of treating physician against the statutory prohibition of coercion of claimant in the selection of a physician, and correctly concluded that the burden was on the employer to demonstrate good cause for the change and that it was in claimant's best interest. The deputy commissioner's ruling follows the proper procedure for accomplishing disputed changes in treating physicians, Bradley Construction v. White, 457 So.2d 547 (Fla. 1st DCA 1984), and is perfectly consistent with previous constructions of section 440.13(2) by this court and the Industrial Relations Commission. Sears, Roebuck & Co. v. Viera, 440 So.2d 49 (Fla. 1st DCA 1983); Gust K. Newburg v. Warren, 449 So.2d 934 (Fla. 1st DCA 1984); Greynolds Park Manor Nursing Center v. Efford, IRC Order No. 2-3348 (1978).

In the Viera case, the employer had authorized a number of orthopedic surgeons and neurologists to treat claimant's lower back injury, but claimant objected to these physicians and requested treatment by a chiropractor. The employer stood firm and did not authorize any chiropractor or alternative care, so claimant proceeded to obtain unauthorized, but successful, chiropractic treatment. At the hearing on the contested chiropractor's fees, the employer argued it was claimant's duty to seek prior authorization from the deputy commissioner since the employer had already authorized treatment by other physicians. Claimant, on the other hand, argued that the employer had the responsibility to go before the deputy when it objected to his request for chiropractic care. The deputy commissioner agreed with claimant's position and, as the court noted,

held that once claimant objected to the services rendered by the authorized physicians and requested alternative care, it was the employer's duty, under section 440.13(2), Florida Statutes (1981),

"to...