Workers' Compensation

The claimant sent a written request to the employer/carrier on June 20, 2019, exercising his right to a one time change in physician. The employer/carrier failed to respond. On July 2, 2019, the claimant filed a petition for benefits, again requesting the one time change. Twenty-seven days later, the employer/carrier filed a response granting the change and naming Dr. Feiertag as the alternate physician with corresponding appointment information. The claimant did not attend the appointment. Subsequently, the claimant voluntarily dismissed the petition.

Then on July 28, 2020, the claimant filed a second petition, requesting authorization of his chosen alternate physician, Dr. Roush. Three days later, the employer/carrier indicated that the claimant’s request was denied and that Dr. Feiertag was the current authorized one time change physician. Before the hearing on the second petition, the claimant, on his own, had an evaluation from Dr. Roush.

At the hearing, the claimant argued that the employer/carrier forfeited its right of selection when it failed to timely respond to the first request on June 20, 2019. The employer/carrier argued that the claimant’s voluntary dismissal of the first petition waived or extinguished his right of selection and that filing the second petition equated to a new request for a one time change, to which it responded timely. 

The judge concluded that because the claimant did not attend the employer/carrier-scheduled appointment, he did not acquiesce to the authorization. The judge also rejected the employer’s/carrier’s argument that the claimant had forfeited his right of selection. However, the judge denied the claimant’s request for authorization of Dr. Roush because the claimant had withdrawn the request for a one time change when he voluntarily dismissed the petition in its entirety and because the second petition constituted a new request. The claimant filed a motion for rehearing, which the judge denied. This appeal followed.

The appellate court held that the judge erred: 

1.    by determining that the claimant waived his right of selection when the affirmative defense of waiver was never raised by the employer/carrier until their trial memorandum; 
2.    in holding that the voluntarily dismissal signaled a withdrawal or abandonment of the request for a one time change when the claimant had asserted his right to a one time change in writing prior to the filing of the first petition; and 
3.    by failing to adhere to the 1st District Court of Appeal’s holding in City of Bartwo v. Flores, 301 So. 3d 1091 (Fla. 1st DCA 2020), which held that the employer/carrier forfeits the right of selection if it fails to timely respond. 

The order was reversed and remanded for authorization and scheduling of an appointment with Dr. Roush as the claimant’s one time change physician.
 

_{What’s Hot in Workers’ Comp, Vol. 27, No. 3, March 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, 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.}