TALLAHASSEE — The Florida 1st District Court of Appeals decided against the plaintiff in a workers-compensation case because he sought to change primary doctors from a family practice physician to an orthopedist.

According to a report by the News Service of Florida, state law allows for a change of doctors in a workers-compensation matter. However, the case of Brenton Davis v. RetailFirst Insurance Company and ServPro of Tampa was different. According to the report, RetailFirst Insurance failed to respond in time to Davis’ request for a change of physician.

In an opinion filed on Jan. 23, the court stated, “In this case of first impression, we are called upon to decide an issue upon which the judges of compensation claims are split: whether an employer/carrier’s failure to respond timely to such a request entitles the employee to a physician in a different specialty from that of the originally authorized physician. We hold that it does not.”

In filing the request for a change, Davis relied on 890 So. 2d 1128, 1129 (Fla. 1st DCA 2004). Section 440.13(2)(f) that said, in part: “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 … The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within five 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.”

ServPro Industries employed Brenton Davis on June 13, 2014. According to a petition for workmans-compensation benefits, Davis sustained an injury when he stepped in a hole and injured his right calf, leg and lower extremity. RetailFirst Insurance, based in Lakeland, insured his employer, ServPro.

Joseph W. Little, a professor emeritus of law at the University of Florida College of Law who has taught worker’s compensation law many times, told the Florida Record that the issue here is clear.

“Plainly, the man wanted to change doctors,” he said.

Florida’s worker’s compensation laws are not unusual, Little said.

“All worker’s compensation laws are similar,” he said. “All have their roots in the British Compensation Act of 1906. In the passage of time, there are many local wrinkles in compensation laws.”

“What the court is doing is trying to interpret the statute,” Little said. “I think the interpretation is understandable. I disagree with it. I think the court could easily have said that the statute doesn’t specifically address this particular issue. The statute is clear that it’s the obligation of the employer to provide the doctor to treat the injury of the employee.”

Little said would have ruled differently if he had been the judge and would have held in favor of the worker's entitlement to choose the doctor. However, he said he does not feel the case will go to the Florida Supreme Court.

“The jurisdiction of the Florida Supreme Court is a limited jurisdiction,” he said. “In a case like this, there would have to be conflict between this decision and the decision of a different district court, which is unlikely to occur since most of the worker’s compensation are in the 1st District Court of Appeals. So there’s no invalidity of the statute or unconstitutionality involved. So I think it’s highly unlikely."

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