Laura Myers v. Pasco County School Board and Johns Eastern Company, Inc.

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-5457

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LAURA MYERS,

Appellant,

v.

PASCO COUNTY SCHOOL BOARD

and JOHNS EASTERN COMPANY,

INC.,

Appellees.

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On appeal from an order of the Judge of Compensation Claims.

Stephen L. Rosen, Judge.

Date of Accident: August 26, 2016.

June 4, 2018

JAY, J.,

In this workers’ compensation case, the Claimant seeks relief

from a summary final order of the Judge of Compensation Claims

(JCC) denying her request for a “one-time change” of physician as

permitted by section 440.13(2)(f), Florida Statutes (2016). For the

reasons set forth below, we reverse.

“[A] claimant who sustains a compensable injury is entitled to

a one-time change in treating physician as an absolute right if a

written request is made during the course of treatment.” Zekanovic

v. Am. II, Corp., 208 So. 3d 851, 852 (Fla. 1st DCA 2017). This one-

time change must be made with a doctor who practices in the same

specialty as the originally authorized physician. Id. (citing

Retailfirst Ins. Co. v. Davis, 207 So. 3d 1035, 1037 (Fla. 1st DCA

2017)). The doctor’s specialty is determinative, “regardless of who

makes the selection.” Zekanovic, 208 So. 3d at 852.

Here, when the Claimant requested a one-time change from

her orthopedic surgeon, the Employer/Carrier (E/C) authorized a

neurosurgeon. When the Claimant filed a petition alleging that the

authorization failed to meet the statutory requirements, the JCC

denied the petition reasoning that the term “specialty” is broader

than the “specialty of [the] physician” and “should be extended to”

the types of conditions the doctor treats. Because orthopedic

surgeons and neurosurgeons both treat back injuries, and because

the Claimant has a compensable back problem, the JCC concluded

that the E/C’s authorization was in compliance with the statute.

However, the JCC’s analysis is not grounded in the language

of the statute. Section 440.13(2)(f) requires that the one-time

change be made with a physician who practices in the “same

specialty” as the originally authorized doctor. Zekanovic, 208 So.

3d at 852 (emphasis added). A physician who provides similar

services in a different specialty does not qualify as a doctor in the

“same specialty” because—quite simply—“same” is different than

“similar.” See, e.g., Clare v. Lynch, 220 So. 3d 1258, 1261 (Fla. 2d

DCA 2017) (“[I]t is clear that the legislature intended that

specialists from the ‘same specialty’ be required as corroborating

experts in medical malpractice litigation. While providers from

‘similar’ specialties may have been previously permitted, they are

not permitted any longer. . . . The trial court’s ruling in this case,

which effectively resurrects the prior statutory language by

crediting an affidavit from a provider in a ‘similar’ specialty,

constitutes a clear departure from the essential requirements of

the law that cannot be countenanced.”).

Thus, the neurosurgeon authorized by the E/C did not practice

in the “same specialty” as the originally authorized orthopedic

surgeon. Id. Consequently, we reverse the order denying the

Claimant’s claim for a one-time change—and the associated denial

of the claim for attorney’s fees and costs—and remand for further

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proceedings in accordance with this opinion.

REVERSED and REMANDED.

WOLF and WINSOR, JJ., concur.

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Not final until disposition of any timely and

authorized motion under Fla. R. App. P. 9.330 or

9.331.

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Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for

Appellant.

Stephen M. Barbas and Kristen H. Emerson of Barbas, Nunez,

Sanders, Butler & Hovsepian, Tampa, for Appellees.

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