REQUEST FOR ONE TIME CHANGE MUST BE READILY APPARENT AND UNAMBIGUOUS TO BE EFFECTIVE
Finally a win for the Employer/Servicing Agent/Carrier. No more games of “gotcha” by some claimants’ attorneys trying to get the Employer/Servicing Agent/Carrier to fail to respond within five days to a request for a one-time change. Our law firm had litigated this issue before a Judge of Compensation Claims and actually prevailed. The case was not appealed. In our case, the claimant’s attorney sent a five page alleged Grievance to the adjuster asking for all sorts of benefits and summarizing the case. Hidden on paragraph three of page three was one sentence where the claimant’s attorney requested a one-time change if no follow up appointment was scheduled. We successfully argued that the request for a one-time change must be clear and unequivocal. Now there is case law to support such position. In the recent case of Gonzalez v. Quinco Electrical, Inc./Zenith Ins. Co., (Opinion Filed July 15, 2015 Case No. 1D14-5395), the First District Court of Appeal held that a request for a one time change must be “readily apparent, unobscured, and unambiguous, to advance the purpose of placing the E/C on notice that such a request is being made in that document.” In this case, the claimant’s attorney filed a Notice of Appearance containing the normal information contained in a Notice of Appearance but on the second page of such notice, there was a sentence requesting a one-time change of treating physician per Section 440.13(2)(f). Apparently, the Judge knew that this particular claimant’s attorney used such tactic in another case. The First District Court of Appeal recognized that the workers’ compensation system must “ensure the prompt delivery of benefits . .. and be an efficient self-executing system.” Well this applies to the claimant and his/her attorney also. The Court recognized that the tactics of the claimant’s attorney delayed the delivery of benefits and increased litigation which was contrary to the self-executing nature of the Act. The Court also held that the request for a one-time change “should not be inserted into a document that appears on its face to have exclusively another purpose.” The Court stated that this tactic amounted to inappropriate sharp practice and gamesmanship. Bottom line, if you can argue that the request for a one-time change was not readily apparent, clear, and unambiguous, you can defeat having to authorize a physician on of the claimant’s choice. Keep in mind that his opinion is not yet final until the time expires for the parties to file a Motion for Rehearing.