Mylock v. Champion Intern.

• Decision Date: 18 July 2005
• Docket Number: No. 1D04-2326.,1D04-2326.
• Citation: 906 So.2d 363
• Parties: Alvin MYLOCK, Appellant, v. CHAMPION INTERNATIONAL and Sedgwick Claims Management, Appellees.
• Court: Florida District Court of Appeals

906 So.2d 363

Alvin MYLOCK, Appellant, v. CHAMPION INTERNATIONAL and Sedgwick Claims Management, Appellees.

No. 1D04-2326.

District Court of Appeal of Florida, First District.

July 18, 2005.

T. Rhett Smith and Teresa E. Liles of T. Rhett Smith, P.A., Pensacola, for Appellant.

Roderic G. Magie, Pensacola, for Appellees.

ERVIN, J.

In this workers' compensation appeal, claimant Alvin Mylock challenges the order of the judge of compensation claims (JCC) denying his petition for attorney fees, entered on the ground that his attorney failed to secure for him any medical benefits in his earlier filed claim.¹ Because we disagree with the judge's conclusion that appellant was not entitled to fees for the reason that appellees Champion International and Sedgwick Claims, the employer/carrier (E/C), never de-authorized claimant's treating physician, we reverse the denial and remand with directions that the JCC award claimant's counsel a reasonable fee for services performed in achieving the re-authorization of claimant's physician.

While claimant was being treated for his work-related injury, the E/C, on October 10, 2003, forwarded a letter to claimant's counsel informing him that, pursuant to section 440.13(2)(d), Florida Statutes (2003), it was transferring the care of claimant from his authorized physician, Dr. Mangieri, to that of his "replacement physician," Dr. Spruill, because an independent medical examination (IME) disclosed that claimant was not making appropriate progress under Dr. Mangieri.² The letter also scheduled an appointment with Dr. Spruill. On October 23, 2003, claimant filed a petition for benefits seeking the continued authorization of Dr. Mangieri. Thereafter, on October 31, 2003, the E/C replied by letter that it did not intend to de-authorize Dr. Mangieri, who remained claimant's physician. Four days thereafter, the carrier filed a formal reply to the petition, again referring to its rights under section 440.13(2)(d), to transfer the care of an injured employee to a health-care provider, if the IME confirmed that the employee was not making adequate progress. The next event occurred on November 18, 2003, when a mediation conference was held, and a report thereafter filed, agreeing that all pending issues had been resolved, including Dr. Mangieri's authorization, and a medical bill paid. Thereafter, claimant's counsel submitted a petition for attorney fees based on his asserted successful prosecution of the medical benefits claim on behalf of Mr. Mylock.

In denying the application for fees, the JCC interpreted the communications from the E/C to claimant to be, at most, only an "intention" to de-authorize the attending physician at some future point in time, and concluded they could not be construed as conveying a present intent to "de-authorize," which term, he noted, the E/C had never used. In so deciding, the judge emphasized that the carrier had never informed Dr. Mangieri of any intention to transfer the employee to another physician's care, nor was there any evidence that Dr. Mangieri had at any time denied claimant treatment. The judge apparently considered the lack of communication to claimant's attending physician critical to a determination of claimant's entitlement to attorney fees. In support of his decision, the JCC cited Pardo v. Denny's, Inc., 631 So.2d 388 (Fla. 1st DCA 1994), wherein this court concluded that because the carrier had not notified a physician of claimant's request for medical services within 21 days after the filing of same, the carrier was required to pay claimant's attorney fees, pursuant to section 440.34(3)(b), Florida Statutes (1989),³ despite its direct notification to the attorney of the authorization within 21 days after its receipt of the notice of claim.

To the extent the judge's order turned on a resolution of the facts, we apply the review standard of competent, substantial evidence; to the extent it involved an interpretation of law, our standard is that of de novo. We cannot agree that the Pardo holding affects the outcome of the present case. The facts in Pardo, involving an injured employee's request for medical care, as authorized by section 440.13(2)(a), are far different from those at bar, involving, under section 440.13(2)(d), a carrier's attempt to transfer care from an attending health-care provider with whom the employee had expressed no dissatisfaction. In the former situation, the necessity for expedited consideration is obvious, in that a delay in the provision of services, as recognized in Pardo, could have the effect of threatening the worker's life. In contrast, the transfer of care from an existing health-care provider to another at the carrier's direction is not ordinarily attended by the same dire consequences.

We find nothing expressly stated or reasonably...