Case Law Update
ONE TIME CHANGE OF PHYSICIAN (5 DAY RULE) UNDER F.S. 440.13(2)(f)
Harrell v. Citrus County School Board, 25 So. 3d 675 (Fla. 1st DCA 2010)
The Court first noted that the one-time change is mandatory and absolute. The claimant is entitled to the one-time change even if the initial treating doctor opines that the work accident is no longer the MCC of the need for treatment. Next, the Court ruled that simply acknowledging entitlement and authorizing a request is not sufficient. The Carrier must authorize one specific physician within 5 days of the claimant’s written request for a one-time change. Otherwise, the claimant is entitled to select the physician. Though, the Court ruled that the carrier is not required to schedule an appointment with the new physician within this 5 day period.
Pruitt v. Southeast Personnel Leasing, Inc., 33 So. 3d 112 (Fla. 1st DCA 2010)
The Court clarified that although the claimant has an absolute right to a one-time change in physician, the claimant does not have an absolute right to select the one-time change in physician. If the employer/carrier does not timely authorize a one-time change in physician, the claimant has the option of selecting the physician. If the claimant fails to exercise this option, he or she waives the right to select the one-time change.
TWO DISMISSAL RULE
Mieses v. Applebee’s, 14 So. 3d 1228 (Fla. 1st DCA 2009)
The Court held that a second notice of voluntary dismissal shall operate as an adjudication of denial of any claim or PFB previously the subject of a voluntary dismissal. This is so even where there was only one notice of voluntary dismissal, if that notice of voluntary dismissal dismissed multiple claims or PFBs.
TEMPORARY PARTIAL DISABILITY BENEFITS
Wyeth/Pharma Field Sales v. Toscano, 40 So. 3d 795 (Fla. 1st DCA 2010)
The claimant sustained a compensable injury and her doctors opined that she was not at MMI and had work restrictions. Subsequent to the accident, the Employer laid off over 1,000 workers, including the claimant. The e/c defended on grounds that the loss of earnings were not related to the compensable injuries, but rather corporate downsizing. In addition, the e/c defended on the grounds that the claimant did not engage in a job search.
The case essentially clarified the legal standard applicable to the payment of TPD benefits. The Court stated that TPD benefits are payable if overall MMI has not been reached and the compensable injury creates restrictions on the claimant’s ability to return to work. The claimant’s initial burden is to prove a causal connection between the compensable injury and the loss of income. This causal connection is established through medical evidence demonstrating the claimant’s inability to perform pre-injury job duties. The Court held that a claimant establishes prima facie entitlement to TPD benefits and therefore satisfies this initial burden when the claimant establishes that as a result of the work injury, the claimant was unable to perform the tasks of the pre-injury job, which caused a change in employment status resulting in a reduction of wages below 80% of the pre-injury AWW. The claimant is not required to prove that her work restrictions prohibit the performance of all other potentially available employment. Once the claimant meets her initial burden, the burden shifts to the E/C to prove that during the claimed period of TPD, the claimant refused work or voluntarily limited her income.
Subsequent to 1994 there is no job search requirement. However, a claimant may establish disability through an unsuccessful job search in situations where subsequent to the accident the claimant returned to work within the work restrictions at a rate that would preclude TPD, but who later becomes unemployed for reasons unrelated to the injury.