Linda Wagner Farrell

After the claimant suffered a compensable accident, the employer/carrier authorized Dr. Rosabald to treat her. Doctor Rosabald indicated that surgery was not necessary and released the claimant to return to work. The claimant then requested a one-time change via a fax directly to the adjuster, not to defense counsel, even though it requested that all communications be sent to defense counsel. The adjuster received the request on October 11, 2019, but did not respond, naming an alternative physician, until October 24, 2019. The statute requires a response within five calendar days in order for the employer/carrier to retain control of the selection of a new doctor.

The employer/carrier first argued that the request for a one-time change was not valid in that it was not sent to the employer/carrier’s counsel after having requested that all communications be sent to defense counsel. 

The claimant saw Dr. Lazzarin on her own, before the employer/carrier responded to the one-time change request, and this doctor recommended surgery and physical therapy. The employer/carrier argued that Dr. Lazzarin was not an authorized treating physician because they had timely provided an alternative physician in response to the one-time change.

The employer/carrier’s second argument was that, if Dr. Lazzarin was deemed authorized, there was a conflict between Doctors Rosabal and Lazzarin, which would require the judge to order an expert medical advisor (EMA) to resolve the conflict.

The First District Court of Appeal held that the employer/carrier had preserved the EMA argument in its pre-trial motion to bifurcate, its pre-trial motion for appointment of an EMA, its trial memorandum, its oral argument at trial and its motion for rehearing renewing the request for an EMA.

The Judge of Compensation Claims rejected the employer/carrier’s argument about the one-time change, finding that their response was late and, therefore, the claimant was entitled to select her own physician, Dr. Lazzarin. The judge admitted Dr. Lazzarin’s opinions into evidence along with those of Dr. Rosabal. The judge ultimately awarded the claimant medical and indemnity benefits but did not address the EMA request. 

On a motion for rehearing, the judge rendered an amended judgment, indicating the claimant’s physician was not adjudicated to be authorized until the final order and there was no dispute requiring an EMA at any time before or during the final merit hearing.

The district court held that this reasoning was flawed in both logic and law. The judge should have addressed and ruled on the employer/carrier’s well-preserved, contingent argument that if the claimant’s choice of Dr. Lazzarin was valid, then his opinions conflicted with Dr. Rosabal’s and an EMA was required. They went on to say that Dr. Lazzarin counted as an authorized provider and that, because his opinions conflicted with that of Dr. Rosabal, the judge was required to appoint an EMA to resolve the conflict.

The judge’s order was reversed with regard to the portion awarding indemnity and medical benefits and remanded for the appointment of an EMA and further proceedings.

 

_{What’s Hot in Workers’ Comp is prepared by Marshall Dennehey Warner Coleman & Goggin 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 © 2021 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.}