The "One-Time Change" Provision in Workers' Compensation Claims in Florida

Workers’ compensation in Florida is governed primarily by statute. That law puts virtually exclusive control over which doctor treats an injured worker in the hands of the employer and the insurance carrier (E/C). The injured worker has very little to say about who he or she receives medical treatment from. When an injured worker is unhappy with the medical treatment they receive, they have one option if they are to stay within the system. That option is to exercise the right to a “one-time change.”

What is a “one-time change” situation?

Once during the life of a claim, the injured worker can request a change in an authorized provider. The change must and will be to another doctor in the same specialty, but in an unaffiliated practice from the original doctor. The E/C then gets to pick who the replacement doctor is going to be. But, if the E/C fail to authorize an alternate provider within 5 days of the request for a change, the injured worker gets to pick the doctor. When that happens, it is the only time that an injured worker (and his or her attorney) have any control over the provider of the medical care they receive. In certain situations, who a provider is can have a significant impact on the course of medical treatment and whether treatment for an injury will even be covered by workers’ compensation.

Why is it so important?

Since this choice of provider can play such an important role in a workers’ compensation claim, injured workers and their attorneys have tried myriad ways to gain control of it. However, several recent decisions from the First District Court of Appeal State of Florida (1st DCA) have thwarted those efforts.

Decision Example 1 – Distance to Provider

In one recent decision, the E/C authorized an alternate provider that was 46 miles from the injured worker’s home and 28 miles from his place of work. The State of Florida Office of the Judges of Compensation Claims (JCC) found this to be unreasonable and ruled that the injured worker should get to pick the treating doctor. However, the 1st DCA reversed this decision and found that the E/C was able to keep control over who the new doctor would be. Notably, the Court did not determine whether a provider located 46 miles away was reasonable or not. The travel distance, and ultimately the time it takes to travel that distance, is still governed by a “reasonableness” standard that will vary from case to case. But in this case the JCC could not take from the E/C the right to still pick the doctor.

Decision Example 2 – Provider Fees

In early 2022, the Court ruled on a case dealing with the workers’ compensation fee schedule. The fee schedule sets the maximum rates that medical providers can charge the E/C for medical services. Some providers refuse to accept these rates knowing that E/Cs will still want to authorize them to care for injured workers. In this case the injured worker found out that the E/C had agreed to pay more than the allotted fee schedule to see and treat her. She refused to attend an appointment and argued that the E/C forfeited the right to choose the provider. The JCC agreed, but the 1st DCA again reversed this decision. It is worth noting that JCCs have very little authority when compared to a circuit court judge. A JCC has only that power that is expressly conveyed by the statute. Chapter 440 does not give the JCC the authority to decide on “reimbursement disputes.” That authority rests solely with the Division. Thus, even though a doctor charged more than was allowed under the law, the JCC could not determine the selection of that provider to be invalid.

Decision Example 3 – Provider Specialty

In late 2022, the Court ruled on what the statute meant by requiring the change in providers to be in the “same specialty” as the original provider. Here the injured worker was receiving care for a crushed finger by a provider who was board certified as both a general surgeon and a plastic surgeon and with an added qualification in hand surgery. When the injured worker requested a change in providers the E/C authorized a doctor who was board certified in orthopedic surgery with an added qualification in hand surgery. The injured worker argued that she needed a plastic surgeon, like the original doctor, and since the alternate provider did not have that certification, the E/C failed to timely provide a doctor and she should be able to choose the provider. The JCC agreed, but the 1st DCA reversed. The Court reasoned that the facts of the case and the treatment needed should control whether an alternate provider was the “same” and not just “similar.”  Since both providers had added qualifications in hand surgery, in this case, they were the same.

Key Takeaways

• The injured worker’s course of treatment, entitlement to benefits, and possibly even full recovery can depend greatly on the treatment plan being recommended and implemented by the authorized doctor. To that end, the choice in who that provider is becomes is critical. Injured workers and E/Cs will continue to seek every advantage in gaining or maintaining control over that decision. An attorney knowledgeable in these issues is of paramount importance to assist and guide a party to a workers’ compensation case in this process. If you are dealing with a workers’ compensation claim involving an issue with the authorized provider, and you have questions, please contact Osborne, Francis & Pettis today.

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