Over the past year, the First DCA has toughened Employer/Carriers’ obligations required to retain the right to select a physician upon receiving a one-time change request.

In the 2020 case of City of Bartow v. Flores, 301 So. 3d 1091 (Fla. 1st DCA 2020), the court scrutinized the details of what suffices for an E/C’s “granting,” “authorizing,” and actually “providing” the new physician.  Earlier cases had already held that an E/C timely responds within the five days by just informing the claimant of a particular physician’s name within five days of receiving the request, even though the E/C did not contact the doctor. The main issue in Flores concerned the situation when an E/C timely “authorized” the one-time change but did not actually “provide” an appointment until months later so that the claimant was effectively left without care.  The Flores court held that the claimant in that case had the right to select the new physician.

Analyzing the statute, the Flores court stated that “[e]ach sentence of section 440.13(2)(f), standing alone grants a right and/or announces a duty and ramification for noncompliance ….The third sentence details that if an E/C authorizes the physician within five days of receipt of the written request by a claimant, the E/C retains its right of selection of the alternative physician. The fourth sentence instructs that despite timely authorization of an alternative physician, the E/C may still forfeit its right of selection by failing to provide that alternate physician. The Legislature's deliberate use of different terms in the third and fourth sentences clearly indicates an intent for a two-fold duty on the part of the E/C to retain its right of selection—to timely authorize (defined as naming the alternate physician and informing the claimant), and to provide the physician by acquiring an appointment date and informing the claimant.”

The court revisited this issue in the recent case of St. Lucie Pub. Sch./Relation Ins. Servs. of Fla. v. Alexander, No. 1D20-2266, 2021 (1st DCA June 16, 2021).  Once again, the court held that an E/C relinquished its right to select the new physician due to an unreasonable delay in “providing” the new physician. While the E/C in Alexander provided the name of the new doctor to the claimant two days after the request one-time change request, the E/C “did not engage in any follow-up for sixteen days after providing Dr. Rivera with Claimant's medical records for review and they did not make actual contact with Dr. Rivera's office until twenty-one days later, at which time he declined to treat Claimant and another physician was located.”  The court held that the E/C “forfeited the right of selection because they unreasonably delayed setting an appointment with an alternative physician.”

The lesson from these cases, then, is that E/Cs must act diligently to secure an actual appointment with the new physician upon receiving a proper one-time change request or risk waiver of the right of selection.  What constitutes an “unreasonable delay” is a factual question for the JCCs to decide, and JCCs should have some discretion to account for factors outside of E/Cs’ control.  However, the tenor and tone of these recent cases implies that JCCs will now strictly scrutinize an E/C’s efforts (or lack thereof) to “provide/acquire” an actual appointment.