Thursday, July 16, 2015

The One Time Change - and Reminders of our Obligations

On July 15, 2015, the First District Court of Appeal rendered an interesting opinion in Gonzalez v, Quinco Electrical, 1D14-5395. The analysis revolves around Fla. Stat. §440.13(2)(f), the “one-time change of physician.” This “allows the E/C only five days to respond to a one-time change of physician, failing which the claimant’s requested physician must be considered authorized if the treatment being provided is compensable and medically necessary.”

This seems reasonably straightforward, but the statute has received some interpretation. Harrell v. Citrus County School Board, 25 So.3d 675 (Fla. 1st DCA 2010), Pruitt v. Southeast Personnel Leasing, 33 So.3d 112 (Fla. 1st DCA 2010) and Hinzman v. Winter Haven Facility, 109 So.3d 256 (Fla. 1st DCA 2013) each provide some guidance on this section. More recently, the Court has rendered Gadol v. Masoret Yehudit, Inc., 132 So.3d 939 Fla. 1st DCA 2014). It is likely fair to say that this statute is somewhat familiar to the Court.

In HMSHOST Corp. v. Frederic, 102 So.3d 668 (Fla. 1st DCA 2012), the court concluded that “a PFB (petition for benefits) can constitute the written request of the employee.”  The PFB statutory authority is Fla. Stat. §440.192. This says that “for any benefit that is ripe, due and owing,” the “employee may” file “a petition for benefits which meets the requirements of this section.” The change of physician is a benefit, and so it can be sought in a petition for benefits.

What does Gonzalez v, Quinco Electrical, add to this analysis? Well, knowing that the petition for benefits can be the vehicle used to request the one time change, it is clear now that the request cannot be just any writing. In Gonzalez, the injured worker’s counsel became “of record” in the case by filing a petition. See Who Represents this Party and How to Transition Cases upon the Death of Counsel for more, but essentially an attorney for an injured worker can “appear” on a case by filing a petition. In that instance the rules do not require the attorney to also file a Notice of Appearance.

In Gonzalez, the attorney appeared by filing a petition. Then, “three weeks later claimant’s counsel also filed a document titled ‘Notice of Appearance.’” Although this document “contained the information typically included in such a notice,” it also included “on the second page,” a “request for one-time change” under Fla. Stat. §440.13(2)(f).

What was the intent of this request? Is the goal to obtain the statutory benefit, that is the one-time change? Or is the intent to have a specific, claimant-selected, physician authorized because of the employer/carrier’s failure to respond in a timely, within 5 days, manner? Is it a request or a “gotcha?”

The Court notes that claimant’s counsel in this case “’took advantage of’ his belief that adjusters do not always read in full every document they receive.”

Though the request was on page two of a Notice of Appearance, “the E/C discovered the request for a one-time change” in the document “one day after the five-day statutory window ended.”  The E/C then authorized the one-time change to a “new physician for the claimant that same day, although not the physician that claimant had requested.” The injured worker objected and insisted on the requested physician, essentially arguing that the employer/carrier’s authorization was untimely, and therefore ineffective. The trial judge disagreed and “found under the specific circumstances of the case, the ‘Notice of Appearance’ did not trigger the . . . obligation to authorize an alternative physician.”

The appellate court noted the express intention of the Florida workers’ compensation law, which is “an efficient and self-executing system” that should “ensure the prompt delivery of benefits to the injured worker.” The Court noted that “resort to adversarial proceedings in workers’ compensation cases should be a last recourse to resolve intractable disputes between claimants and carriers.”

The “tactic” of inserting the request for change in the Notice of Appearance, the court said “had the effect of delaying the delivery of benefits and increasing litigation and expense, directly contrary to the self-executing system.” The Court concluded that a “request for one-time change” such as this “should not be inserted into a document that appears on its face to have exclusively another purpose.” (The notice of appearance of counsel of record). Instead, “the request should be readily apparent, unobscured, and unambiguous, to advance the purpose of placing the E/C on notice that such a request is being made.”

There is an old saying attributed to Mahatma Ghandi, “if you don’t ask, you don’t get.” This seems logical, and variations on it have appeared. Nora Roberts said it a bit different; she says “if you don’t ask, the answer is always no.” The Court’s logic seems to be that in order to ask, one must make it apparent that one is asking.

The analysis of this case could end with this conclusion. However, it does not. The Court proceeds to remind us of some obligations and commitments. It reminds us of our aspirations.

The Court said that the dispute in this litigation was “the result of an attorney’s intentional act that we consider inappropriate sharp practice and gamesmanship.” The Court quoted from the Oath of Admission to The Florida Bar, The Florida Bar Creed of Professionalism, and Rules Regulating the Florida Bar.

It noted that the Oath of Admission requires attorneys to use “such means only as are consistent with truth and honor.” It cited the “pledge (of) ‘fairness, integrity and civility to opposing parties and their counsel in court and in all written and oral communications.”

It noted “The Florida Bar Creed of Professionalism requires lawyers to “strictly adhere to the spirit as well as the letter of [the legal] profession's code of ethics, to the extent that the law permits and . . . at all times be guided by a fundamental sense of honor, integrity, and fair play.”

It cited Rules 4-3.3 and 4-3.4 of the Rules Regulating the Florida Bar as foundations for the principles in the Creed and the Oath.

It concluded that “lawyers’ adherence to these pledges and duties would eliminate the improper ‘gotcha’ tactics that generate disputes such as this that unfairly and needlessly consume public and private resources while delaying the workers’ compensation process and making it more expensive.” That is a fairly clear statement. The “courts will not allow the practice of the ‘catch-22’ or ‘gotcha’ school of litigation to succeed.” See, Salcedo v. Asociation Cubana, Inc., 368 So.2d 1337, 1339 (Fla. 3rd DCA 1979).

This decision of the Court will perhaps generate discussion. There are a myriad of rules, guidelines, etc. that govern the behavior of attorneys, adjusters, judges, doctors, and more. It seems like every profession has devoted some measure of attention to professionalism and ethics. I suspect that every one of us has been in situations that challenged our ideals, tempted our behavior, and tested our will (as I write this morning, there are some brownies in the kitchen that are testing mine in a profound way!). We are all human beings, and as such we are one thing without dispute and that is imperfect.


We may strive . . . No; we must strive to live up to the rules that regulate our professions. Beyond the mere compliance with rules, we must also strive for professionalism. This is something beyond following rules (the “letter of the . .  . code”). 

Professionalism is idealistic and aspirational. It requires the best of us. We will not always be our best perhaps because by our very nature we will always be human. But we can always strive to be our best, strive to be true to “the spirit as well as the letter of [the legal] profession's code of ethics, to the extent that the law permits and . . . at all times be guided by a fundamental sense of honor, integrity, and fair play.” It is a Creed. It sets a high bar for us all. We may perhaps fail periodically, but that does not mean that we cannot or should not nonetheless strive.

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