Harrell v. Citrus County School Bd.

• Citation: 25 So.3d 675
• Decision Date: 15 January 2010
• Docket Number: No. 1D09-3331.,1D09-3331.
• Parties: Amanda HARRELL, Appellant, v. CITRUS COUNTY SCHOOL BOARD and FSBIT Insurance Trust, Appellees.
• Court: Court of Appeal of Florida (US)

25 So.3d 675

Amanda HARRELL, Appellant, v. CITRUS COUNTY SCHOOL BOARD and FSBIT Insurance Trust, Appellees.

No. 1D09-3331.

District Court of Appeal of Florida, First District.

January 15, 2010.

James E. Hack, St. Petersburg, and Bill McCabe, Longwood, for Appellant.

Pamela J. Cox and Jodi K. Mustoe of Cox & Mustoe, P.A., Maitland, for Appellees.

PER CURIAM.

Claimant challenges an order of the Judge of Compensation Claims (JCC) denying her request for a "one-time change" of orthopedist and her claim for temporary partial disability (TPD) benefits through the date of the final hearing. Because competent substantial evidence supports the JCC's denial of TPD benefits, we affirm on this issue. The JCC erred as a matter of law and fact, however, by denying Claimant's request for a change in physician. Accordingly, we reverse on this issue.

On February 20, 2007, Claimant suffered injuries to her shoulder and back. The employer/carrier (E/C) provided treatment, and Claimant was eventually referred to Dr. Lowell, an authorized orthopedic physician. On October 9, 2008, Claimant filed a formal grievance form with the E/C requesting, in part, authorization for a change of orthopedist because she was dissatisfied with Dr. Lowell. On October 14, 2008, counsel for the E/C sent Claimant a letter agreeing to authorize a new orthopedist. Specifically, the letter stated in full:

The [E/C] is in receipt of your Grievance regarding [Amanda Harrell]. They have agreed to authorize a one-time change of orthopedic doctors. They are in the [process] of scheduling that appointment and you will be advised of the date and time of the appointment under separate cover. If you have any questions, please do not hesitate to contact me.

Subsequently, on October 28, 2008, the E/C sent a second letter to Claimant advising Claimant of her appointment with Dr. Parr on November 14, 2008.

On November 19, 2008, Claimant filed a petition for benefits seeking, in part, authorization of Dr. Simon based on the E/C's failure to timely authorize a new orthopedic physician. The E/C defended against the claim by arguing it sent a timely letter to Claimant authorizing Claimant's request for a "one-time change" in orthopedist.

In an order dated June 4, 2009, the JCC denied Claimant's request for a change in orthopedic physician, finding the industrial accident was not the major contributing cause (MCC) of Claimant's symptoms. Section 440.13(2)(f), Florida Statutes (2006), provides in pertinent part:

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. . . . 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.

We have previously held that "the use of the word `shall' in . . . section 440.13(2)(f) means that this one-time change is mandatory, regardless of whether the initial authorized doctor opines that a compensable accident is no longer the MCC of a claimant's need for treatment." Providence Prop. & Cas. v. Wilson, 990 So.2d 1224, 1225 (Fla. 1st DCA 2008). Likewise, this change is mandatory "regardless of the E/C's position as to either the change of physician or the new physician's treatment." Dawson v. Clerk of Circuit Court-Hillsborough County, 991 So.2d 407, 409 (Fla. 1st DCA 2008). Accordingly, the JCC erred in denying Claimant's request for a change of orthopedic physicians based on the finding that the work-related accident was not the MCC of Claimant's need for treatment.

In the order, the JCC made factual findings regarding the E/C's purported authorization for a change in orthopedic physicians. Specifically, the JCC found "Claimant requested authorization for a change in orthopedics on October 9, 2008," and that the E/C "advised Claimant's counsel on October 14, 2008, that Dr. Parr was being provided as Claimant's one-time change in physicians." No competent substantial evidence supports this latter finding.

The E/C's October 14, 2008, letter, quoted above, makes no mention of Dr. Parr or any other physician authorized to treat Claimant. Rather, the letter simply states that the E/C "agreed to authorize a one-time change of orthopedic doctors." The record demonstrates Claimant was not advised of Dr. Parr's authorization until October 28, 2008—nineteen days after Claimant's October 9th written request. Because the E/C failed to authorize...