City of Bartow v. Flores

• Decision Date: 29 May 2020
• Docket Number: No. 1D18-1927,1D18-1927
• Citation: 301 So.3d 1091
• Parties: CITY OF BARTOW and Commercial Risk Management, Appellants, v. Isidro FLORES, Appellee.
• Court: Florida District Court of Appeals

301 So.3d 1091

CITY OF BARTOW and Commercial Risk Management, Appellants,

v.Isidro FLORES, Appellee.

No. 1D18-1927

District Court of Appeal of Florida, First District.

May 29, 2020

Rehearing Denied July 28, 2020

Vanessa J. Johnson and Warren K. Sponsler of Sponsler, Bishop, Koren & Hammer, P.A., Tampa, for Appellants.

Nicolette E. Tsambis of Smith, Feddeler, Smith, P.A., Lakeland, for Appellee.

M.K. Thomas, J.

We review an order of the Judge of Compensation Claims, (JCC) finding the Employer/Carrier (E/C) failed to comply with section 440.13(2)(f), Florida Statutes (2015), the "one-time change provision," and awarding authorization of a claimant-selected alternate physician. We write only to address a matter of first impression—what satisfies the E/C's obligation under section 440.13(2)(f) to "provide" an alternate physician or forfeit its right of selection. We affirm as to all issues, though we certify a question of great public importance asking the supreme court to clarify the issue.

Facts

Following a compensable work injury in 2015, Claimant was authorized to treat with Dr. Henkel, a neurologist. On June 20, 2017, Claimant's counsel requested, via letter, a change in physician within the same specialty. A response providing the date and time of an appointment was requested from the carrier within five days. The following day, the E/C's attorney acknowledged the request and advised Claimant's counsel that the E/C "is authorizing Dr. Mary Ellen Shriver, and Dr. Henkel is no longer authorized. ..." The E/C further informed that "[d]etails regarding the appointment will be forthcoming under separate cover."

Between June 28 and July 19, multiple communications occurred between the parties as a result of Claimant inquiring about the status of the appointment with Dr. Shriver. Claimant's counsel filed a Petition for Benefits on July 19, requesting "a one-time change as requested on June 20, 2017" and designating Dr. Koebbe as Claimant's alternate physician selection, as the "E/C has not provided the response requested within 5 days from the request for the change." On August 16, 56 days after the E/C's receipt of the one-time change request, Claimant was advised of an appointment with Dr. Shriver for September 11 (63 days from date of the request). Claimant's counsel responded that Claimant would not attend the appointment with Dr. Shriver and advised the E/C to refrain from any resetting until after the issues raised in the petition were addressed at final hearing. The E/C defended the petition by asserting the one-time change provision was satisfied, as it named Dr. Shriver and notified Claimant of the authorization within one day of receiving the request for the one-time change.

The E/C filed a motion for summary final order. Claimant objected asserting that, prior to an adjudication of the claim, there were multiple issues of fact to be considered by the JCC, including the timeliness of the E/C's actions and "the implied statutory standard of reasonableness." Claimant emphasized that during his two-month wait for notification of an appointment date with Dr. Shriver, he was without an authorized medical provider due to the automatic deauthorization of Dr. Henkel. The JCC denied the E/C's motion, finding the matter required resolution of mixed questions of law and fact.

At hearing on the petition, Claimant stipulated that the E/C timely responded within five days to his request for a one-time change. No witnesses were called by either party to testify; however, during legal argument, the E/C's attorney asserted that "as an officer of the court," she could establish that her office contacted Dr. Shriver's office on June 23 regarding acquisition of an appointment date, and numerous calls were made on June 24 and 25 to acquire an appointment date. The defense attorney further stated that "there [were] calls made, calls that came back [and] that missed each other. And then there, was, having to send over the records, there was having to wait for review by the doctor, and then ultimately an appointment was made." Claimant's attorney countered that he was entitled to authorization of Dr. Koebbe, his choice of alternate physician, as the E/C did not "provide" an appointment date with Dr. Shriver as required by section 440.13(2)(f).

The JCC entered a final order granting Claimant's request for a one-time change of his choice. In response to the E/C's subsequent motion for rehearing and to vacate the final order, a second hearing occurred to address due process arguments.¹ Subsequently, the JCC entered the Amended Final Order that is the subject of this appeal. The JCC again ruled in Claimant's favor for authorization of Dr. Koebbe.

In the amended final order, the JCC made the following findings of fact concerning the acquisition of an appointment with Dr. Shriver:

On July 20, 2017 counsel for the [E/C's] staff, responded to Claimant's inquiries advising that she had been trying to get through to them , and that Claimant counsel would be notified when a date/time had been obtained. Although it is not entirely clear to whom E/C staff was referring as "them," the context surrounding the e-mail, the request for information about an appointment with Dr. Shriver, and the fact that all communication on this issue originated directly from counsel for the [E/C] I accept that the e-mail refers to attempts to get through to Dr. Shriver. When the attempts to contact Dr. Shriver were initiated is not entirely clear from the evidence. What the evidence shows is that [E/C] did not "get through" to Dr. Shriver until August 16, 2017 which is the date the [E/C's] counsel sent notice of a September 11, 2017 appointment with Dr. Shriver to counsel for the Claimant.

(Emphasis in original.) The JCC further determined, "[f]rom the limited evidence submitted it can be reasonably inferred that attempts to contact Dr. Shriver were not initiated until a month following the request for the change and multiple requests for status from the claimant's counsel." The JCC found no evidence Claimant had waived the right to select his one-time change of physician as he did not attend the appointment with Dr. Shriver.

Legal 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." Pinnacle Benefits, Inc. v. Alby , 913 So. 2d 756, 757 (Fla. 1st DCA 2005). However, to the extent the issues raised on appeal concern statutory construction, a question of law is presented, and our review is de novo. Palm Beach Cty. Sch. Dist. v. Ferrer , 990 So. 2d 13, 14 (Fla. 1st DCA 2008) ; Matrix Emp. Leasing v. Hernandez , 975 So. 2d 1217, 1218 (Fla. 1st DCA 2008) ; Mylock v. Champion Int'l , 906 So. 2d 363, 365 (Fla. 1st DCA 2005).

The JCC defined the issue before him as "what constitutes the authorization and provision of a change of physician as indicated in [ section 440.13(2)(f) ]." Because this Court has previously addressed the meaning of "authorization" in this context, we rephrase the issue on appeal as what satisfies the E/C's obligation under section 440.13(2)(f) to "provide" an alternate physician or forfeit its right of selection.

"The substantive benefit provided in paragraph 440.13(2)(f) is a claimant-initiated, one-time change of physician, without regard to medical necessity." Gadol v. Masoret Yehudit, Inc., 132 So. 3d 939, 940 (Fla. 1st DCA 2014) ( citing Sunbelt Health Care v. Galva , 7 So. 3d 556, 561 (Fla. 1st DCA 2009) ). The one-time change provision states:

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. (emphasis added).

The third sentence of section 440.13(2)(f) requires that the carrier "shall authorize" an alternative physician within five days. This Court has defined the necessary steps required of an E/C to satisfy authorization in this context.² See Gadol, 132 So. 3d at 940 (holding an E/C timely responds by informing claimant of new doctor's name within five days and "does not require the E/C to actually contact or schedule an appointment with the new doctor"); Bustamante v. Amber Constr. Co ., 118 So. 3d 921, 922 (Fla. 1st DCA 2013) (holding E/C timely response to one-time change of physician request requires notice to claimant of authorization—the "flip side" of Frederic ); Hinzman v. Winter Haven Facility Operations LLC , 109 So. 3d 256, 257 (Fla. 1st DCA 2013) (holding the five-day response period refers to calendar days, not business days); HMSHost Corp. v. Frederic , 102 So. 3d 668, 668 (Fla. 1st DCA 2012) ("E/C's informing Claimant of a particular doctor's name within five days of receiving the request satisfied section 440.13(2)(f), even though the E/C did not contact the doctor."); Harrell v. Citrus Cty. Sch. Bd ., 25 So. 3d 675, 678 (Fla. 1st DCA 2010) (noting that "[t]o timely respond to a claimant's request, an E/C is not required to schedule an appointment with the newly authorized physician"); Dorsch, Inc. v. Hunt , 15 So. 3d 836, 837 (Fla. 1st DCA 2009) (holding authorization in the context of section 440.13(2)(f), does not "mean that an appointment with a specific physician was ‘actually scheduled. ...’ It requires merely...