Linda Wagner Farrell

The injured worker sustained a serious injury to her finger. She came under the care of Dr. Cortez, a board-certified general and plastic surgeon with an added certificate for hand surgery via the emergency room. After two surgeries were performed, the claimant requested a one time change of physician under Florida Statute 440.13(2)(f).

The employer/carrier authorized Dr. Easterling of Orthopedic Specialists of South Florida, who is board-certified in orthopedic surgery and, like the prior physician, has an added certificate for hand surgery. He testified that the only area of orthopedics he practices in is hand surgery. The injured worker refused to see this doctor, claiming she needed a plastic surgeon and arguing the “change of physician must be in exactly the same specialty as the initial treating physician,” and Dr. Easterling was not board-certified in the same primary specialty as Dr. Cortez. However, she acknowledged that both had a certificate for hand surgery. Dr. Cortez testified that hand surgery is a “sub specialization” within general, plastic and orthopedic surgery. 

The judge of compensation claims agreed with the claimant and held that the employer/carrier should find someone with a specialty of general and plastic surgery versus orthopedic surgery. 

The First District Court of Appeal turned their attention and focus to the term “specialty.” They pointed out that this is not defined anywhere in Chapter 440 or by case law. Relying on a definition from the dictionary, specialty means “the particular subject area or branch of medical science, to which one devotes professional attention.” They went on to say that the “specialty” for the one time change of physician must be one that furthers the employer’s duty to deliver a continuum of care facilitating the employee’s return to gainful employment. They found little merit to the claimant’s argument that she needed a plastic surgeon in this case. 

The court held that the judge of compensation claims erred by focusing exclusively on the physicians’ board certifications without considering the nature of the claimant’s injury, the authorized course of treatment, and the qualifications, training and expertise of the physicians.
 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 1, January 2023 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2023 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}