IN THE SUPREME COURT OF FLORIDA GUERDA FREDERIC, Case No: NOT YET ASSIGNED Petitioner, Lower Tribunal Case No: 1D11-4956 vs. HMSHOST CORPORATION/GALLAGHER BASSETT SERVICES INC., Respondent. / PETITIONER S JURISDICTIONAL BRIEF On Review from the District Court of Appeal, First District State of Florida Kimberly A. Hill, Esquire Florida Bar Number 0814059 Co-counsel for the Claimant Kimberly A. Hill, P.L. 821 SE 7 th Street Fort Lauderdale, FL 33301 (954)533-4764 Email: khill@kimberlyhill-pl.com Attorney for the Appellant i
TABLE OF CONTENTS TABLE OF CONTENTS ii TABLE OF CITATIONS.. iii STATEMENT OF THE CASE AND FACTS....1 SUMMARY OF THE ARGUMENT...2 JURISDICTIONAL STATEMENT. 3 ARGUMENT 4 POINT I CONCLUSION..10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS 12 ii
TABLE OF CITATIONS CASES PAGE Great Am. Indem. Co. v. Williams, 85 So. 2d 619, 622 (Fla. 1956).2, 4, 5, 6, 7, 8, 9 Harrell v. Citrus County Sch. Bd., 5 So. 3d 675 (Fla. 1st DCA 2010) 2, 4, 5, 7 HMSHOST Corporation v. Frederic, 37 Fla. L. Weekly D1266a (Fla. 1 st DCA 2012).4 Pardo v. Denny s, Inc., 631 So. 2d 388 (Fla. 1st DCA 1994) 5, 6 STATUTES PAGE 440.13(2)(f), Fla. Stat. (2010).1, 2, 4, 6, 8 OTHER PAGE Art. V, 3(b)(3), Fla. Const. (1980)..3 Fla. R. App. P. 9.030(a)(2)(A)(iv) 3 iii
STATEMENT OF THE CASE AND FACTS The Petitioner [Claimant] was the prevailing party in a workers compensation case wherein the Judge of Compensation Claims found that the Petitioner was entitled to designate Dr. Hodor as his one-time change in physicians pursuant to 440.13(2)(f), Fla. Stat. (2010), because the Respondent [E/C] did not timely authorize the one-time change in physician and as such the Respondent waived its right of selection. An appeal was filed by the Respondent to the First District Court of Appeal to review the Judge of Compensation Claims order allowing the Claimant the right of selection of his one-time change in treating physicians, pursuant to section 440.13(2)(f), Fla. Stat. (2010). On May 29, 2012, the District Court reversed the order of the Judge of Compensation Claims. The District Court held: The E/C s informing Claimant of a particular doctor s name within five days of receiving the request satisfied section 440.13(2)(f), even though the E/C did not contact the doctor. Rehearing, Rehearing En Banc and Certification were all denied on July 20, 2012, by the District Court and the Petitioner s notice to invoke the discretionary jurisdiction of this court was timely filed originally on July 30, 2012, with an amended notice being filed on July 31, 2012. 1
SUMMARY OF THE ARGUMENT The crux of the case before the district court was whether the Respondent authorized, within five (5) days, as required by statute a one-time change in treating physicians, pursuant to 440.13(2)(f), Fla. Stat. (2010). The district court held that the E/C s informing Claimant of a particular doctor s name within five days of receiving the request satisfied section 440.13(2)(f), even though the E/C did not contact the doctor. The district court relied, in part, on its previous decision in Harrell v. Citrus County Sch. Bd., 25 So. 3d 675 (Fla. 1st DCA 2010). In Harrell, the District Court cited Great Am. Indem. Co. v. Williams, 85 So. 2d 619, 622 (Fla. 1956), for the proposition that simply acknowledging a claimant's statutory entitlement is not sufficient and, also [A]llowing an E/C to comply with its statutory duty by generally acknowledging its statutory obligation to provide a change would emasculate the statute and the five-day time period. Id. The decision of the district court in this case, cannot be reconciled with this court s decision in Williams because the district court reached a decision contrary to the rule of law set forth in that case. Therefore, the petitioner contends that the decision of the district court expressly and directly conflicts with a previous decision of this Court. 2
JURISDICTIONAL STATEMENT The Florida Supreme Court has discretionary jurisdiction to review a decision of a district court of appeal that expressly and directly conflicts with a decision of the supreme court of another district court of appeal on the same point of law. Art. V, 3(b)(3), Fla. Const. (1980); Fla. R. Appl. P. 9.030(a)(2)(A)(iv). 3
ARGUMENT In the decision of the district court, reported as HMSHOST Corporation v. Frederic, 37 Fla. L. Weekly D1266a (Fla. 1 st DCA 2012) (Appendix A), the initial decision of the Judge of Compensation Claims was reversed. The district court held that the E/C s informing Claimant of a particular doctor s name within five days of receiving the request satisfied section 440.13(2)(f), even though the E/C did not contact the doctor. The district court relied, in part, on its previous decision in Harrell v. Citrus County Sch. Bd., 25 So. 3d 675 (Fla. 1st DCA 2010), in which it cited to this court s decision in Great Am. Indem. Co. v. Williams, 85 So. 2d 619, 622 (Fla. 1956), for the proposition that simply acknowledging a claimant's statutory entitlement is not sufficient and, further [A]llowing an E/C to comply with its statutory duty by generally acknowledging its statutory obligation to provide a change would emasculate the statute and the five-day time period. In so holding, the district court was interpreting 440.13(2)(f), Fla. Stat., which says: the carrier shall authorize an alternative physician... within 5 days. The E/C s failure to authorize a one-time change in physician within the time frame established by statute results in its loss of right of selection of the treating physician. The crux of the case before the district court was whether a physician who had not been notified of his authorization by any means satisfies the 4
authorization requirement, since the district court previously held that authorization requires notification of the physician. Pardo v. Denny s Inc., 631 So.2d 388 (Fla. 1 st DCA 1994). The challenged district court decision announces and relies upon a rule of law that conflicts with the rule previously established by this court in Williams, supra. This court in Williams this court expressly stated that: In our view the letter from the carrier, quoted above, advising that it stood ready and willing to pay compensation was not such a compliance with the requirements of the act as would avoid invoking its requirement to pay the claim. The pertinent part of the said statute as applied to this case is that the carrier did decline to pay a 'claim' on or before the 21st day after they had notice of same. Willing to pay 'compensation' is not the same as willing to pay a specific claim. The decision of the district court that the E/C s informing Claimant of a particular doctor s name falls short of the rule of law established by this court in Williams as to what constitutes the provision/authorization, as opposed to a willingness to provide the benefit claimed [in this case authorization of a doctor] creating a conflict in the decisions. Relying on the premise established in Williams via the district court s prior decision in Harrell, the district court had previously held that the E/C is not required to schedule an appointment with the newly authorized physician within five days, but [B]ased on a plain reading of the statute, an E/C is required, however, to authorize at least one specific physician within five days of a 5
claimant's request. [Emphasis added]. Furthermore, in Harrell, citing this court s decision in Williams, the district court also held that [S]imply acknowledging a claimant's statutory entitlement is not sufficient. As to the decision under review the district court has now held that simply informing the claimant of a particular doctor s name within five days of receiving the request is enough, even though the physician had no knowledge of the purported authorization. Even if the E/C is not required to schedule an appointment with the proposed one-time change within five days, 440.13(2)(f), Fla. Stat., irrefutably requires that [T]he carrier shall authorize an alternative physician... within five days after receipt of the request. [Emphasis added]. So, the plain language of the statute requires that the physician be authorized within five (5) days and Pardo requires notification of the physician before treatment can be furnished. So the doctor notification requirement must be met to satisfy the plain language of the statute and to effectuate authorization in accordance with this court s prior decision in Williams which requires something more than a willingness to provide benefits whether it is medical care or death benefits. Although an opposite scenario presented itself in Seigler v. RMC America s of Florida, 57 So.3d 913 (Fla. 1 st DCA 2009), it demonstrates the point and why this is an issue that should be reviewed by this court. In Seigler, in relation to the one-time change provision, the E/C first contacted the doctor it intended to 6
authorize to see if he took workers compensation patients. The provider did accept workers compensation patients, but wanted to review records before deciding to take the case. This aspect was accomplished within five (5) days. However, the claimant was not notified within five (5) days. The JCC held that the E/C timely responded and this court reversed based on Harrell. Seigler is cited to illustrate how the E/C s informing the Claimant of a particular doctor's name within five days of receiving the request does not automatically result in authorization of the physician. In Seigler, even though the E/C made contact with the doctor within five (5) days, he did not accept the case until sometime later at which point the E/C notified the Claimant and it was determined by the district court to be too late [outside the five (5) day period]. Although the E/C did not name a specific doctor to the Claimant within the five (5) day period in Seigler, if the situation had been reversed and the carrier had notified the claimant within five (5) days, but the doctor ultimately decided against taking the case after reviewing the medical records authorization of a new physician within five (5) days would not have been accomplished, despite the E/C s timely notification of the Claimant. So, notification of the Claimant without more cannot constitute authorization because it represents nothing more than a willingness to provide a new physician which is contrary to this courts mandate in Williams. 7
The decision of the district court obfuscates the expressed purpose to ensure the prompt delivery of benefits to the injured worker, and to create an efficient and self-executing system. 440.015, Fla. Stat., and ignores as well the fundamental purpose of the workers compensation law which is to place the benefits in the injured worker s hands quickly and efficiently which, again, goes against the rule of law established in Williams that willingness to accept responsibility for a claim is not acceptance of the specific claim. Similarly willingness to authorize a certain doctor does not accomplish authorization of that doctor without his or her acceptance of the case within five (5) days, so notification of the Claimant is a meaningless gesture. Naming a specific physician without more in the context of 440.13(2)(f), is nothing more than the intent to authorize a specific physician, but does not accomplish authorization unless the physician is somehow notified and accepts the case. In fact, it renders the statutory period of five (5) days to accomplish authorization worthless because it allows an E/C an indefinite and unspecified amount of time within which they have to actually authorize treatment with the newly selected doctor, so long as the E/C provides a name to the Claimant within five (5) days regardless of whether a doctor has been contacted and authorized. However, this action of notifying the Claimant does nothing toward actually 8
authorizing the physician and fails to lend credence to the time-frame established by the Legislature for authorizing a new physician. The effect is that the E/C can write a letter to the Claimant naming a specific physician and then do nothing. So, that the E/C has expressed a willingness to authorize a specific doctor without finding out if that specific doctor takes workers compensation benefits or intends on taking the case. If the E/C does nothing for a week or a month or even a year, other than notifying the Claimant that a specific physician is authorized within five (5) days, the Claimant has no recourse other than to wait for the E/C to actually authorize the physician, since a physician cannot treat under the Workers Compensation Law absent authorization. Not only that, the physician may not want to treat or may no longer take workers compensation patients. Such an interpretation is contrary to Williams and it also defeats the self-executing nature of the Workers Compensation Law because the decision also fails to place a time limit how long the E/C has to notify the physician of his authorization and, thus allows the E/C to potentially delay indefinitely the actual authorization of the change in physician. Not only does this question impact the Claimant in this particular case, but it potentially impacts all injured workers throughout the State because each injured worker is entitled to a single one-time change in treating physicians during the course of a claim which is noted to be a mandatory benefit. An injured worker has 9
virtually no control over medical treatment under the current Workers Compensation Law, unless the E/C fails to comply with this provision of the statute by authorizing a one-time change within five (5) days. Otherwise control remains with the carrier. If this court were to exercise its discretionary jurisdiction and, ultimately, agrees with the Petitioner, the impact would be widespread affecting employer/carriers and claimants throughout the State. Regardless of whether the Claimant in this case, ultimately, has a right to selection of his physician, a ruling by this court in favor of quashing the district court s decision would impact claimants mandatory right their one-time change in physicians and would require employer/carriers to authorize new physician within five (5) days which would include notifying that physician of authorization and acceptance of the assignment by the physician. If the E/C fails to comply then the Claimant can select his or her own physician and obtain immediate care which the E/C would be required to pay for subject to other statutory limitations. CONCLUSION This court has discretionary jurisdiction to review the decision below, and the court should exercise that jurisdiction to consider the merits of the petitioner s argument. 10
CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was sent via electronic mail on this 9 th day of August 2012 to: Steven Miller, Esquire, Attorney for the Employee/Claimant/Petitioner at smillr@kaplanandmiller.com; H. George Kagan, Esquire, Attorney for the Respondent at GeorgeK@mkrs.com. Kimberly A. Hill, Esquire Florida Bar Number 0814059 Kimberly A. Hill, P.L. 821 SE 7 th Street Fort Lauderdale, FL 33301 (954)533-4764 Email: khill@kimberlyhill-pl.com Attorney for the Appellant 11
CERTIFICATE OF COMPLAINCE I hereby certify that the foregoing brief complies with the font and spacing requirements of Rule 9.210, Florida Rule of Appellate Procedure. Kimberly A. Hill, Esquire Florida Bar Number 0814059 Kimberly A. Hill, P.L. 821 SE 7 th Street Fort Lauderdale, FL 33301 (954)533-4764 Email: khill@kimberlyhill-pl.com Attorney for the Appellant 12