Disability Law

Claimant Entitled to "One-Time-Change" Even Though First Physician Never Undertoook Actual Treatment

By David A. McCranie, Esq.

The claimant is entitled to a "one-time-change-of-physician" under §440.13(2)(f) where the first physician evaluated him and ordered an MRI scan even though he never rendered any actual treatment.  So said the First District Court of Appeal in Nunez v. Pulte Homes, Inc., decided on 7/7/2008.

The statute in question provides that the carrier "shall give the employee the opportunity for one change of physician during the course of treatment for any one accident" (emphasis added).  In Nunez, the record showed that the claimant had been seen twice by Dr. Lusk, a neurosurgeon who, after ordering an MRI scan, opined that the claimant was not a candidate for surgery.  The claimant, who speaks Spanish, was dissatisfied with Dr. Lusk because he could not properly communicate with the doctor.  He therefore requested a "one-time-change-of-physician" pursuant to the statute.

The E/C refused the request, relying upon Butler v. Bay Center, wherein the First District held that in order to be entitled to a "one-time-change," the claimant must have actually received treatment from the physician from whom the change is requested.  The JCC agreed and denied the request.

But on appeal, the First DCA distinguished Butler and reversed.  The court held that for purposes of the statute, "treatment" includes "examination and diagnosis as well as application of remedies."  Therefore, because Dr. Lusk evaluated the claimant "during the course of treatment," he was entitled to a "one-time-change" as a matter of law.

Full post as published by Florida Workers’ Compensation Law Blog on July 14, 2008 (boomark / email).