Lynn v. American Airlines Group

OJCC Case No. 21-018336JIJ (FL.Off.Judge.Comp.Cl. February 11, 2022)

KK TAKEAWAY:

A Carrier’s failure to schedule an appointment with an alternate physician pursuant to §440.13(2)(f) fifty-six (56) days after the request is made is an unreasonable delay justifying the forfeiture of selection of the alternate physician if the Carrier did not make any attempt to schedule an appointment with more than one physician.

BACKGROUND:

On February 11, 2022, JCC Jacobs issued a Final Compensation Order on the question of whether the claimant was entitled to her selection of a one-time change pursuant to Florida Stature §440.13(2)(f). By way of background, the Claimant sustained a compensable industrial accident on August 18, 2019 when she slipped on wet pavement and fell while walking to a shuttle bus to transport her from a hotel in Philadelphia to the airport, resulting in injuries to her right wrist and right shoulder. Upon her return she began receiving authorized medical care with Concentra and Med Express where she resided in Fort Myers. The Carrier then authorized an orthopedic surgeon, Dr. Thompson, to treat her right shoulder, and another orthopedic surgeon, Dr. Richards, to treat her right wrist injury. She soon came under the care of Dr. Richards for both of her compensable injuries, and Dr. Richards discharged the Claimant from his care in February 2021 without any physical restrictions or limitations. The Claimant returned to work for the Insured as a flight attendant, but continued to suffer intermittent pain and limited motion of her right wrist and right shoulder. Not satisfied with her care, the Claimant sent the Carrier a letter via facsimile transmission requesting authorization of an alternate orthopedic surgeon on July 1, 2021.

At his deposition, the claims adjuster responsible for this claim testified that the Carrier received the letter on July 1, 2021, and on July 2, 2021, sent counsel for claimant a letter via facsimile that stated “[p]lease be advised your client’s onetime change request is being scheduled with Dr. Thomas Parent at Millennium Physician Group; appointment letter forthcoming.” That same day, the adjuster sent an email to Dr. Parent’s office with the Claimant’s medical records and requested his office call or send an email to schedule an appointment for her. However, Dr. Parent’s office did not contact or schedule

an appointment for the claimant, so on July 6, 2021, the adjuster placed another telephone call and left a message for Dr. Parent’s office. The adjuster’s call was never returned. On August 3, 2021, counsel for Claimant sent the adjuster a letter via facsimile requesting authorization of Claimant’s choice in one-time change of orthopedic surgeon, Dr. Robert Hill, pursuant to §440.13(2)(f). Three (3) days later on August 6, 2021, counsel for Claimant sent the adjuster another letter requesting the Carrier authorize Dr. Hill because the E/C forfeited its right of selection due to an unreasonable delay in the provision of the alternate physician. The adjuster did not respond to these letters. On August 10, 2021, the adjuster sent a letter to Dr. Parent’s office requesting the scheduling of an appointment “ASAP.” Again, there was no response from Dr. Parent’s office. On August 11, 2021, the Claimant filed a Petition for Benefits requesting authorization and provision of Dr. Hill as an alternate orthopedic surgeon. On August 19, 2021, the adjuster sent an email to the nurse case manager, seeking assistance in scheduling an appointment with Dr. Parent, and on August 26, 2021, the nurse case manager scheduled an appointment for Dr. Parent to examine the Claimant on September 2, 2021. The Claimant was notified of the appointment the day it was scheduled. However, on August 27, 2021, counsel for Claimant notified the Carrier that the Claimant would not be attending the appointment with Dr. Parent. The Carrier never attempted to schedule an appointment with any physician other than Dr. Parent in response to the onetime change request. In rendering his decision JCC Jacobs found that the Employer/Carrier authorized an alternate physician within five (5) days of the request in accordance with §440.13(2)(f). However, the Carrier’s fifty-six (56) day delay to provide the alternate physician was ruled unreasonable. He noted that the adjuster unsuccessfully attempted to schedule an appointment with Dr. Parent’s office on two (2) occasions and thee adjuster testified to making five (5) to ten (10) additional telephone calls to schedule an appointment. However, JCC Jacobs labeled the Employer/Carrier’s lack of effort in scheduling an appointment with any physician other than Dr. Parent after no response as inexcusable and in violation of the express intent of the Workers’ Compensation Law to promptly deliver benefits to an injured worker. Based upon the foregoing, JCC Jacobs concluded that the Employer/Carrier forfeited its right to select the one-time change in orthopedic surgeon, and that the Employer/Carrier shall authorize and schedule an appointment for Dr. Hill to examine and treat the Claimant.