Jeffrey P. Gale, P.A. // Limited Medical Choices in Florida Workers’ Compensation Cases

Florida Statute § 440.13 governs the provision of medical care under Florida’s workers’ compensation system. As a general rule, the employer and its insurance carrier (collectively, the “E/C”) exercise substantial control over an injured worker’s medical care.

The most significant manifestation of this control is the E/C’s statutory right to select the claimant’s authorized treating physicians. In practice, this dynamic frequently results in medical opinions that align with the interests of the E/C, often to the detriment of the injured worker. Because these physicians depend upon carrier referrals for a substantial portion of their practices, their opinions may—consciously or otherwise—reflect that economic reality.

On limited occasions, however, the E/C temporarily loses control of the medical care. The most common scenario arises when the claimant sustains severe injuries requiring emergency hospitalization and surgery. In such cases, the treating surgeon—particularly one who maintains a private practice—often continues as the primary physician following the claimant’s discharge from the hospital. While this physician is not selected by the E/C, neither is the physician chosen by the claimant. Nonetheless, the E/C’s initial control over physician selection is disrupted.

Section 440.13(2)(c), Florida Statutes, provides the E/C with a “reasonable time period” to furnish initial medical treatment and care. If the E/C fails to do so, the claimant “may obtain such initial treatment at the expense of the employer.” Even then, however, the statute allows the E/C to later regain control of the medical care.

This principle was illustrated in Carmack v. State of Florida, Department of Agriculture, 31 So. 3d 798 (Fla. 1st DCA 2009). There, the claimant suffered a compensable accident but the E/C refused to authorize psychiatric treatment arising from physical injuries to the claimant’s leg and back. The claimant independently sought treatment with a psychiatrist and filed a Petition for Benefits seeking authorization of both past and future care with that physician. The Judge of Compensation Claims ordered the E/C to pay for treatment through the date of the final hearing, but declined to authorize ongoing care with the claimant’s chosen psychiatrist. Instead, the E/C was permitted to select a different psychiatrist. The First District Court of Appeal affirmed, reinforcing the E/C’s ability to reassert control over the medical care even after an initial failure to authorize treatment.

Section 440.13(2)(f), Florida Statutes, provides what is often the only meaningful opportunity for a claimant to select a physician who will remain authorized prospectively. That opportunity, however, arises only when the E/C commits a statutory misstep. The relevant portion of the statute provides:

“Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident…. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.”

In Zekanovic v. American II, Corp., 208 So. 3d 851 (Fla. 1st DCA 2017), the E/C failed to respond within five days to the claimant’s written request for a one-time change of physician under section 440.13(2)(f). The claimant subsequently filed a Petition for Benefits seeking authorization of a specific physician as his one-time change. Although the JCC found that the claimant was entitled to the one-time change, the JCC concluded that because the claimant had not yet obtained treatment with the requested physician prior to the entry of the order, the E/C retained the right to select the replacement physician. On appeal, the First District reversed, holding that the E/C’s failure to timely respond forfeited its right to select the physician, and that the claimant was entitled to treat with the physician he selected.

In our practice, we routinely request one-time changes of physician. Given the significant consequence of a failure to timely respond—namely, forfeiture of medical control—the E/C almost always complies within the statutory five-day window and retains the right to select the replacement physician. Instances in which the E/C fails to timely respond are exceedingly rare.

In this case, however, such a failure occurred. Notably, the oversight appears attributable to opposing counsel rather than the adjuster. In the interest of professionalism, we offered to work collaboratively with counsel to identify an alternative physician acceptable to both parties. Those discussions have thus far been unsuccessful, as we are unwilling to agree to one of the routinely selected carrier physicians. In the interim, the claimant is scheduled to treat with the physician she selected later this month. Opposing counsel understands that absent an agreement on an alternative physician before that appointment, the E/C will be obligated to authorize treatment with the claimant’s chosen doctor pursuant to section 440.13(2)(f).

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

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DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.