One-Time Change; The Five Day Controversy

The Florida Workers’ Compensation Act gives an injured worker the right, once during the life of their case, to make a request for a one-time change in treating physicians. However, except in very unusual circumstances, the carrier retains the right to select the one-time change physician. The only exception to this general rule of a carrier’s right to select is if the carrier does not respond to the claimant’s request for a one-time change physician within five days. Under that circumstance, the individual would be permitted to select his or her own physician.

Five days seems fairly straight forward. However, the most obvious question is does that mean five calendar days or business days? In the Hinzman case decided in 2013, the Judge of Compensation Claims (JCC) ruled that the “5 days” in section 440.13(2)(f), Florida Statutes (2011), meant business days rather than calendar days. [1] The First District Court of Appeal did not agree, and held the five days listed in the statute means five calendar days rather than business days.  The court explained:

“Seen another way, because the Legislature specified “business days” elsewhere in section 440.13, canons of statutory interpretation (particularly the presumption of consistent usage) dictate that the Legislature’s use of the unmodified term “days” here refers to consecutive or calendar days. Although the Legislature used the terms “calendar days” and “consecutive days” in other sections of chapter 440, the wording of those statutes, unrelated to the topic of this statute (permitting injured employees to request “one change of physician during the course of treatment for any one accident” regardless of medical necessity for such), does not affect the analysis of the statute in question here. Policy concerns asserted by the Employer/Carrier here are more properly directed to the Legislature, to address or not, as it would choose.”

[1] Hinzman v. Winter Haven Facility Operations LLC, 109 So. 3d 256 (Fla. App., 2013).

If you have questions about a one-time change in treating physician issue, or have questions for a workers comp attorney in Tampa, Fl, please do not hesitate to contact us to speak with an experienced Tampa work comp lawyer today. We offer free consultations, and there is never a fee if we don’t recover benefits on your behalf.

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