Tuesday, February 14, 2017

A Victory (Whose?) on One Time Change

On February 7, 2017 the Florida Fist District Court of Appeal published Zekanovic v. American II Corp., Case number 1D16-3669.  

It is an interesting case in which the recovering worker asked for a "one time change" and the Employer/Carrier (E/C) did not respond within "five days of its receipt, as required by paragraph 440.13(2)(f), Florida Statutes (2013)." In 2013, the Court decided Hinzman v. Winter Haven Facility Operations, Case Number 1D12-2382. It concluded that "within 5 days," as used in this statute, means exactly that, "5 days," and not "5 business days." 

Despite the failure to respond within 5 days in this case, the Judge of Compensation Claims did not allow the recovering worker to make his own choice for his new physician. The District Court reversed, but the recovering worker nonetheless did not get what he sought.

In this case, the recovering worker "faxed" his formal request for change on December 23, 2015 (this date is relevant and is discussed in the case, and below; think holidays and being off work). The Employer/Carrier (E/C) responded on January 5, 2016 (13 days after the request), and offered another physician. Thirteen is greater than 5, and one might conclude that therefore the worker could select his own physician.

On January 13, 2016, the recovering worker "filed a petition for benefits requesting authorization of Dr. Hassan." The recovering worker took the position that he was entitled to Dr. Hassan as a result of the untimely response by the E/C. The E/C continued to declined to authorize Dr. Hassan, and the matter proceeded to trial. 

The appellate court noted that "as of the date of the hearing, Claimant had not sought treatment with Dr. Hassan or any other a physician of his choice." It described that the trial judge concluded that the recovering worker was entitled to the one time change, but that the E/C was still allowed to choose the physician to whom care would be transferred. The District Court explained that the judge's decision was predicated upon the fact that at the time of trial the recovering worker had not yet begun care with Dr. Hassan. 

The Court reiterated that "under paragraph 440.13(2)(f), a claimant who sustains a compensable injury is entitled to a one time change in treating physician as an absolute right if a written request is made during the course of treatment." Therefore, the Court said that Dr. Hassan was (in January 2016) "considered authorized" because of the failure to timely respond. But, because of developments in the law since then, this recovering worker will nonetheless perhaps never treat with Dr. Hassan. 

As an aside, if the E/C provides an alternate provider, even outside the 5 day requirement as it did here, the recovering worker can accede to that choice and begin treatment with the E/C's proffered alternative. But, the Court noted, the recovering worker is in the driver's seat once the five day period has expired. If the E/C proffers an alternative provider after the five day window, the recovering worker may elect to accept that provider, but is not bound. After the five day period, she/he retains the right to choose her or his own provider. That right to choose is not extinguished by a late offer of an alternative provider. And, as important in this case, that right is not waived by the recovering worker not beginning care and treatment with her/his selection immediately, or even before trial on the issue. 

So, at this point in the analysis, it appears the recovering worker would receive what he wanted, to treat with Dr. Hassan. But, the Court in Zekanovic reminded of another recent constraint on the recovering worker. It referenced its January 23, 2017 decision in RetailFirst Insurance Co. v. Davis, No. 1D16-2310 (Fla. 1st DCA 2017), which held that "when dealing with a one-time change, the change must be within the same (medical) specialty regardless of who makes the selection." 

Remember, Florida law provides that the E/C selects the treating physician, and thereby selects the treating specialty. The recovering worker can select an alternate provider once during her or his case, the "one time change." But, pursuant to the Court's recent logic, the E/C having made the original selection of provider, the E/C thus has ultimate control on the selection of medical specialty to provide care, even following the one time change. 

The control is not absolute. While the employee has a clear path to changing the care provider, the "one time change," changing the specialty of care is perhaps more complex. To change the specialty of care, it appears the recovering worker's path is to ask, and hope that the E/C agrees. If not, then perhaps the worker's only recourse is an independent medical examination (with that other specialty or recommending that other specialty), followed by a petition for benefits, a mediation and trial? 

If that is the only process for a change in medical specialty, then it will ultimately be up to either the Judge or an expert medical advisor to decide if the change in specialty is warranted. The outcome might ultimately be dependent in part by the specialty that is practiced by the expert medical advisor (EMA) selected by the Judge. In other words, an EMA that practices pain management might conclude that such care is appropriate, while an EMA that practices orthopedic surgery might conclude otherwise. 

Finally, the Zekanovic Court mentioned the timing of this "change" request, and suggested that it "smacks of gamesmanship." The request for a one time change in this case was faxed December 23, 2015, "just prior to the holidays" and therefore the court concluded that the E/C had "a little more than one business day to respond. Neither the appellate opinion nor the underlying compensation order provided any indication of what time on December 23, 2015 the one-time-change request was faxed. If it was sent early that morning, then the E/C had all day on the 23rd and all day on the 28th to respond (see below). If the fax was sent late in the day on the 23rd, then the E/C had only December 28th, counting regular "business days." 

What the appellate opinion did not mention is that this request was not this recovering worker's first. According to the compensation order, the recovering worker had sought a "one time change" on November 20, 2014 and withdrew that request when he did not like the doctor the E/C authorized per his request (the request itself said "the one-time change must be acceptable to the claimant"). Then, on August 20, 2015 the recovering worker again requested a "one time change," with a similar stated reservation of right of refusal. The E/C again timely responded and the worker "refused this physician and advised the employer/carrier that he would prefer to treat with Dr. Pagano and withdrew his request." 

Is the right to a "one time change" a right that should be read as "a one time change acceptable to the recovering worker," or does that reading of the statute, and the addition of words (italic), make any more or less sense than the strained reading that inserted "business" into the "5 days" language, a reading rejected in Hinzman? Does a recovering worker that requests a one time change have a right to refuse the one time change that is then provided? If so, from what statutory provision does that right come?

Back in 2013, I suggested that E/C's would need to respond with agility following the Court's decision in Hinzman, questioning "Can 'Jake' Authorize a Change in Physician?" (A play on a popular television commercial for an auto insurance company touting their 24 hour per day availability for policy service calls). Under Hinzman, each year a fax on the Wednesday before Thanksgiving might leave an E/C with only a day to respond. Each year, a Friday fax before Martin Luther King Day, Memorial Day, and Labor Day (consistently Monday holidays) might afford an E/C no more than two days to respond (and on the odd chance an adjuster took a Friday or Tuesday off to turn a three-day weekend into more, then a Thursday fax might be as constraining as the one in Zekanovic). And, the placement of other holidays such as July 4, Christmas and others might have a similar effect depending on the year. 

Some lament the Hinzman "5 days" interpretation. I have heard it described as "unfair" and "unwieldy." But, as the court noted in Zekanovic, that "is a policy consideration that should be directed to the Legislature, not this court." Since the E/C is allowed to select the treating specialty, arguably exclusively unless there is a claim and litigation, the E/C might be seen as having significant control, with the one-time-change a small exception. Does the recovering worker take some of this control with an inferred "right of refusal" regarding the alternate provider? Perhaps that will be an issue for the Court in the future. 

Back to those commercials in which they tout the ease of 24 hour contact ("Jake") with their automobile insurance company; there, perhaps the only tool for the E/C is a ready, handy list of providers with which to rapidly respond to such "day before the holiday" requests? With such a list, the E/C could rapidly and perhaps rotely respond to the request, and gamesmanship versus gamesmanship could be the norm?  

But, this system should not be about gamesmanship. Would such a a rote response move the worker's recovery forward? Shouldn't that be the inquiry - "does this move the recovery forward?" Twice in the Zekanovic claim, requests for change were made, with a reservation of right of refusal (no citation was provided for the legal authority of that reservation), and twice an alternate provider(s) were offered. Those requests and authorizations did not apparently effectuate progress with recovery, because the worker rejected them. Will there be more gamesmanship with multiple such "reservation of refusal" requests for change, in hopes of some carrier eventually missing the deadline on one? Does that move the recovery forward?

The third Zekanovic request, recently decided by the Court, might provide progress toward recovery. If it does, that progress will undeniably be more than a year after the recovering worker filed his Petition for Benefits on January 13, 2016. I have touched on how long time lines can get in A Very Brief Case Worthy of Study. The point of that post is that it takes time to litigate. Even in the most expeditious circumstances with all diligence, it takes time. Do long time lines help the worker's recovery or not? After reading of Zekanovic, some might ask if it is better to get what you want after a year or what you need today? (Remember the lyrics?)

But, because of the recent decision in RetailFirst, this recovering worker will not get what he wanted, even after a year of litigation and after winning on appeal. The worker here treated with Dr. Pagano (though the trial order does not say Dr. Pagano is a surgeon, that is inferred by the finding that  he "ultimately performed a lumbar fusion L4-L5"). The recovering worker wanted to change to Dr. Hassan, "a pain management physician." So, despite the employee's year of waiting and his victory on February 7, 2017, the recovering worker will apparently not be selecting Dr. Hassan, RetailFirst.

A year has passed. The recovering worker is now clear that he may choose the doctor to next undertake care, but that provider seemingly will be a surgeon. Has the last year been positive for either the employee or the employer? Has this litigation moved this worker's recovery forward? He has confirmed his right to choose, but apparently cannot choose the doctor, or even the specialty, he has sought. A victory in a legal sense. A victory that will perhaps guide many others in their future pursuits of care. But, in this case, for the recovery of this recovering worker, a Pyrrhic victory perhaps?

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