Workers’ Compensation Case Law Update – One-Time Changes and the “Same Specialty” Requirement

July 24, 2018 by on News

In 2017, the First DCA held in the case of Retailfirst Ins. Co. v. Davis, 207 So. 3d 1035 (Fla. 1st DCA 2017) that one-time changes must be made with a doctor who practices in the same specialty as the originally authorized physician.  In the case of Myers v. Pasco Cty. Sch. Bd., 43 Fla. L. Weekly D1230 (Fla. 1st DCA June 4, 2018), the court addressed whether orthopedic surgeons and neurosurgeons practice in the “same specialty.”  The claimant in Myers requested a one-time change from her orthopedic surgeon, and Employer/Carrier authorized a neurosurgeon. When the claimant filed a petition alleging that the authorization failed to meet the statutory requirements, the JCC denied the petition reasoning that the term "specialty" is broader than the "specialty of [the] physician" and "should be extended to" the types of conditions the doctor treats. Because orthopedic surgeons and neurosurgeons both treat back injuries, and because the claimant had a compensable back problem, the JCC concluded that the E/C's authorization complied with the statute.

The First DCA disagreed and held that neurosurgeons and orthopedic surgeons do not practice in the same specialty for purposes of one-time changes.  The court reasoned that a physician who provides similar services in a different specialty does not qualify as a doctor in the "same specialty" because—quite simply—"same" is different than "similar."

In regions where it may be difficult to identify available orthopedic surgeons or neurosurgeons who are not affiliated with a claimant’s current treating physician, E/Cs should be aware that authorizing a change from an orthopedic surgeon to a neurosurgeon will not suffice absent an agreement from or acquiescence by the claimant.

If you have any questions about this case or would like to refer a workers' compensation matter, please contact our workers' compensation attorneys.

Blake J. Hood
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