Marcy v. Charlotte County Sheriff's Office, 91-803

• Decision Date: 30 April 1992
• Docket Number: No. 91-803,91-803
• Citation: 599 So.2d 1319
• Parties: Ruth MARCY, Appellant, v. CHARLOTTE COUNTY SHERIFF'S OFFICE and Executive Risk Consultants, Appellees. 599 So.2d 1319, 17 Fla. L. Week. D1138
• Court: Florida District Court of Appeals

Page 1319

599 So.2d 1319

Ruth MARCY, Appellant, v. CHARLOTTE COUNTY SHERIFF'S OFFICE and Executive Risk Consultants, Appellees.

No. 91-803.

599 So.2d 1319, 17 Fla. L. Week. D1138

District Court of Appeal of Florida First District.

April 30, 1992.

Brian O. Sutter of Wilkins, Frohlich, Jones, Hevia & Russell, P.A., Port Charlotte, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellant.

Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, P.A., Ft. Myers, for appellees.

SMITH, Judge.

Ruth Marcy, claimant below, appeals an order by the judge of compensation claims (JCC), denying her claim for payment of chiropractic care provided by an unauthorized physician. We affirm.

The primary issue, as stated in appellant's brief, is as follows:

THE JCC ERRED IN DENYING CLAIMANT'S CLAIM FOR PAYMENT OF PAST CHIROPRACTIC BILLS, WHERE CLAIMANT CONTINUOUSLY REQUESTED CHIROPRACTIC TREATMENT BY A CHIROPRACTOR OTHER THAN THAT AUTHORIZED BY THE E/C, BUT THE E/C NEVER OFFERED ANY OTHER CHIROPRACTIC CARE TO CLAIMANT, AND WHERE THE UNCONTRADICTED EVIDENCE IN THE RECORD ESTABLISHES THAT THE CHIROPRACTIC CARE RECEIVED BY CLAIMANT WAS REASONABLE AND NECESSARY.

The issue as framed by appellant does not set forth a basis for reversal. The legal issue, when framed in relation to the facts of the case, is whether claimant's mere request to be treated by a certain physician of her choice, other than the physician previously authorized by the E/C, obligates the E/C to either authorize the physician preferred by the claimant, or to offer treatment by yet another physician. The answer is no.

The pertinent statute is section 440.13(3), Florida Statutes (1989), which provides in part:

If an injured employee objects to the medical attendance furnished by the employer ... it shall be the duty of the employer to select another physician to treat the injured employee unless a judge of compensation claims determines that a change in medical attendance is not for the best interests of the injured employee; however, a judge of compensation claims may at any time, for good cause shown, in the judge of compensation claims' discretion, order a change in such remedial attention, care, or attendance....

As the statute plainly states, the employee must object to the physician furnished by the E/C in order to impose upon the E/C the obligation of selecting another physician for treatment of the employee. ¹

In this case, although it is clear that the appellant expressed her desire to be treated by Dr. Bender, by whom she had been treated for a non-work-related accident, there is no evidence that the E/C was ever made aware that appellant objected to further treatment by Dr. Van Arsdale, who had been previously authorized and in fact had treated appellant for conditions resulting from her initial compensable accident. The necessity for such an objection is recognized by appellant, as indicated by arguments that appellant was "dissatisfied" with Dr. Van Arsdale. Although it may be true, as appellant testified before the JCC, that she "never did feel good" during her treatment by Dr. Van Arsdale, we find no reference by appellant to any testimony in the record establishing that appellant objected to any further treatment by him. Most significantly, there is no testimony that she communicated her dissatisfaction or objection to the E/C. Instead, we find testimony by the E/C's risk management specialist, unrefuted by appellant, that the E/C was never made aware that appellant did not like or was dissatisfied with Dr. Van Arsdale.

Both appellant and appellee agree that this court's opinion in Hill v. Beverly Enterprises, 489 So.2d 118 (Fla. 1st DCA 1986) correctly spelled out the duty of the E/C under section 440.13(3), when the employee becomes dissatisfied with the authorized physician. There the court stated, in part:

When the injured employee expresses dissatisfaction with the authorized physician and requests another, the burden is on the employer/carrier to provide for another physician or obtain an order from the deputy commissioner finding that a change in physicians would not be in the best interests of the employee.

Sears, Roebuck & Co. v. Viera, 440 So.2d 49 (Fla. 1st DCA 1983). To avoid the responsibility for providing for such alternative care, the employer/carrier has the burden of showing that a change of physicians is not in the best interests of the employee. Ellerbee v. Concorde Roofing, 487 So.2d 388 (Fla. 1st DCA 1986). If the employer/carrier fails to provide alternative care or seek a ruling from the deputy commissioner, then the employee may obtain alternative care at the expense of the employer/carrier subject only to reasonableness and necessity. The employee may obtain a ruling on the reasonableness and necessity in advance or seek the alternative care and obtain such ruling afterwards.

Id. at 120, 121. Accordingly, the Hill court held, where the employee notified the employer's supervisor in charge of authorizing physicians that she was dissatisfied with the treatment received from the physician authorized by the E/C, and the E/C failed to direct her to another physician,...