I was recently reminded of the merits and failures of specificity. The Florida First District Court issued Myers v. Pasco County, No. 1D17-5457 on June 4, 2018. The litigation centered upon the injured worker requesting a "one-time change" of physician pursuant to Section 440.13(2)(f).
This worker was treating with an orthopedic surgeon, and requested her statutory "one-time change." The Employer/Carrier responded by authorizing a neurosurgeon. The injured worker was dissatisfied with that authorization and filed a petition for benefits seeking a one-time change meeting "the statutory requirements." The assigned Judge of Compensation Claims denied the petition:
"reasoning that the term 'specialty' is broader than the 'specialty of [the] physician' and 'should be extended to' the types of conditions the doctor treats."
The judge's reasoning was that the condition being treated, a back injury, was something that both orthopedic surgeons and neurosurgeons treat (whether there was record evidence of that factual conclusion is not clear to me). The judge therefore concluded the authorization of a neurosurgeon satisfied the statutory right to a "one-time change."
The Court reversed, concluding that this analysis is "not grounded in the language of the statute." The statute provides:
(f) 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. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. 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.
Failure of the carrier to timely comply with this subsection shall be a violation of this chapter and the carrier shall be subject to penalties as provided for in s. 440.525. (Emphasis added).
The "language of the statute" makes no mention of the "alternative physician" being an expert in the same specialty or subspecialty as the treating physician. That language instead appears in the next sentence, not about the change, but addressing when such an authorization also affects a "deathorization" of the original physician.
The implication of that language requiring that the alternative physician practice in the same specialty of medicine (in that first sentence) was created by the Court. The Court first created this requirement in Retailfirst Insurance Co. v. Davis, 207 So.3d 1035 (Fla. 1st DCA 2017). Davis involved an injured worker requesting the change, but no timely response from the Employer/Carrier. The worker then felt entitled to select any physician as a "one-time change," and the Judge of Compensation Claims there agreed. The Court disagreed.
The court concluded that the "in the same specialty" language regarding deauthorization of the original physician dictates that the one-time change must likewise be in the same specialty. The Court concluded that any other interpretation could produce the potential result not of "change," but of "addition" of a new physician. The Court reasoned that a "change" to a physician of a different specialty would preclude the Employer/Carrier from deauthorizing the original doctor, thus leaving two physicians authorized. Of course, the statute as a whole generally leaves the decision of authorizing physicians to the Employer/Carrier.
Some might argue that the Court's analysis and outcome is detriment, while others see benefit. But, many might concede that such a decision to leave two physicians authorized would be a choice appropriately left to the Employer/Carrier? Authorize within the same specialty, thus deauthorize the original, and leave one, or authorize in a new specialty and be precluded from deauthorization leaving two.
In Davis, the Court concluded such an outcome would leave the injured worker making the selection (because in that instance the Employer/Carrier failed to respond timely). And, the Court noted that worker might "select a specialist who is wholly unsuitable for the 'course of treatment' that has been authorized." In other words, the injured worker might well make a selection that is not in his or her best interest. However, other decisions have reinforced that workers in fact have a right to make their own decisions despite the potential for either benefit or detriment. A month later, the Court reinforced this "selection" interpretation in Zekanovic v. American II, 208 So.3d 851 (Fla. 1st DCA 2017).
For clarity, the Court in Myers concluded that "specialty" has nothing to do with the treatment provided, anatomical damage to be addressed, or diagnosis rendered. For the purposes of this statute, "specialty" is dependent in no way upon the actual facts or circumstances of the worker. For statutory purposes, "specialty" is entirely controlled by the label that the two physicians must share. The issue is not one of "substance," but merely of "form." Notably, there have been several First DCA opinions that found "form" over "substance" analysis to be inappropriate.
"A physician who provides similar services in a different specialty does not qualify as a doctor in the “same specialty” because—quite simply—'same' is different than 'similar.'” (citation omitted)"Same" and "similar" are separate and distinct. It is the name of the specialty, not the skills of the practitioner that matter under the law.
Another aspect of this worth considering is geography. There are areas of Florida in which only one orthopedic surgeon who is willing to treat spinal injuries practices in a community. In that community, there may be neurosurgeons that likewise treat spinal injuries (or vice versa, one neurosurgeon that treats spines and several orthopedics that do). But, an Employer/Carrier may be disinclined to utilize a provider with a specific label, despite their skill, demeanor, and success rate, due to the complication potential from a "one-time change" request. Such a request in this hypothetical community might afford no alternative except a long commute to another town for an alternative that shares the original doctor's label.
An injured worker with a back injury may be under the care of a physician who has trained in the best facilities under the tutelage of the best teachers, with a broad and deep understanding and expertise in the treatment of back injuries, and the title "orthopedic surgeon." Upon a request for a "one-time change," that patient cannot be transferred to a similar physician likewise preeminent in care for back injuries unless the second physician shares the label "orthopedic surgeon." However, the patient may be transferred to a doctor of lesser skill, training, and experience, a doctor with perhaps passing or even fleeting experience with back injury, so long as that physician wears the title "orthopedic surgeon."
One might wonder aloud about what interest is being served thereby. One might reflect upon Section 440.015 which explains the purpose of workers' compensation to
"assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment"
One might advocate that the overarching goal of the system is to deliver the best medical care available, to strive for delivery of the benefits that will facilitate recovery, return of function, and employability. Or, one might conclude that the more logical outcome would be to compare form labels and play a matching game.
In a similar context, I was presented early in my judicial career with a claim for attorney fees in Stromas v. International Paper. My recollection is that this was the second case I ever adjudicated. The Claimant there filed a petition for benefits requesting "authorization for a psychiatrist," and alleging he was "depressed and in need of a doctor." I noted that Section 440.192(2)(f) required specificity. Medical evidence supported that psychiatric care was not medically necessary in that case.
In the course of the litigation, the Claimant underwent an independent medical examination (IME) with a psychiatrist, who also did not recommend psychiatric care. All the physicians declined to recommend the claimed benefit. The IME did however recommend psychotherapy. The Employer/Carrier later authorized "cognitive therapy." The claimant then filed a verified petition for attorney's fees based upon the claim for "authorization for a psychiatrist" and it was denied.
The First District Court of Appeal reversed and directed that attorney fees for that petition be awarded. The Court was clear in its view of semantics, noting
In the course of the litigation, the Claimant underwent an independent medical examination (IME) with a psychiatrist, who also did not recommend psychiatric care. All the physicians declined to recommend the claimed benefit. The IME did however recommend psychotherapy. The Employer/Carrier later authorized "cognitive therapy." The claimant then filed a verified petition for attorney's fees based upon the claim for "authorization for a psychiatrist" and it was denied.
The First District Court of Appeal reversed and directed that attorney fees for that petition be awarded. The Court was clear in its view of semantics, noting
"find particularly unpersuasive the hyper-technical effort by the employer/carrier and judge of compensation claims to distinguish the psychological therapy, which was ultimately authorized, from the authorization of a psychiatrist sought by claimant." Stromas v. Champion International, 828 So.2d 495 (Fla. 1st DCA 2002).
In terms of the specificity requirement of Section 440.192(2)(f), and the entitlement to attorney fees, one might argue that the Court has clearly held that "similar" is in fact sufficient, while in the determination of specialty, "similar lacks" the "same" persuasive nature.
It is for the reader to decide first whether the two analyses present the "same" or merely "similar" statutory frameworks and reasoning. Some will undoubtedly argue each way. But, at least for now, the "one-time change" is clearly a matter of "form" and label, and other medical authorization issues may instead be a matter of "hyper-technical" distinctions that lack a true difference.
