Court Case Update, Florida and Colorado - June 2020
InsightsLegal
By NCCI Insights June 09, 2020


Florida—Change of Physician

On May 29, 2020, the Florida First District Court of Appeal, in City of Bartow v. Flores, ruled that under Florida statute 440.13(2)(f), which entitles claimants to a one-time change of physician, an employer/carrier (E/C) controls the selection of the physician if the alternate physician is authorized within five days of receipt of the request. The court further held, however, that the E/C forfeits the right of selection if it subsequently fails to provide the alternate physician by unreasonably delaying the acquisition of an appointment date.

In this case, the E/C granted a claimant’s change of physician request but did not notify the claimant of an appointment for 56 days. In affirming the decision of the Judge of Compensation Claims, the court found that the claimant could treat with the physician of his choice because the E/C did not attempt to contact the alternative physician until one month following the claimant’s request.

The appellate court certified to the Florida Supreme Court the question of whether an E/C’s duty to furnish timely medical treatment under 440.13(2)(f) is fulfilled solely by timely authorizing an alternate physician to treat the claimant, or whether the E/C must actually provide the claimant an appointment date with the authorized alternate physician.

NCCI will monitor for further developments.

Colorado—Determination of MMI

On May 18, 2020, the Supreme Court of Colorado, in Destination Maternity v. Burren, held that an administrative law judge (ALJ) may determine the maximum medical improvement (MMI) status of a claimant as a question of fact once the employer/carrier (E/C) has overcome the independent medical examination (IME) doctor’s MMI opinion.

In this case, the ALJ ruled that a claimant had reached MMI and had no permanent impairment after finding that the E/C presented clear and convincing evidence that an IME doctor’s conclusion that the claimant’s injuries had not reached MMI was incorrect. The supreme court affirmed the ALJ’s decision, reasoning that an IME doctor opinion is treated as presumptively correct, but a party may overcome the presumption with clear and convincing evidence.

The court explained that, since the Workers’ Compensation Act authorizes an ALJ to make evidentiary rulings, it is within the ALJ’s power to determine whether an E/C has overcome the presumption. Once that occurs, the ALJ may determine the claimant’s MMI status and permanent impairment rating as a question of fact.

For more information on other cases monitored by NCCI’s Legal Division, visit previous Court Case Updates and Court Case Insights, under the Legal section of INSIGHTS on ncci.com.

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