James Harman v. Merchant Transport, CCMSI ( 2021 )


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  •          FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D19-4071
    _____________________________
    JAMES HARMAN,
    Appellant,
    v.
    MERCHANT TRANSPORT, CCMSI,
    Appellees.
    _____________________________
    On appeal from an order of the Judge of Compensation Claims.
    Carol J. Stephenson, Judge.
    Date of Accident: May 16, 2017
    September 15, 2021
    M.K. THOMAS, J.
    James Harman argues the Judge of Compensation Claims
    (JCC) correctly ordered the Employer/Carrier (E/C) to provide him
    with an alternate physician pursuant to section 440.13(2)(f),
    Florida Statutes (2017), but erred in preserving the E/C’s right of
    selection. Under the facts of the case, we affirm.
    I. Undisputed Facts
    Harman sustained a compensable burn to his right foot in
    May 2017, while pressure cleaning with steam. The E/C
    authorized several doctors, including Dr. Koutsonikolis, an
    allergist who treated Harman for a rash. On February 7, 2019,
    Harman made a written request for a one-time change in
    allergists, from Dr. Koutsonikolis to Dr. Tuer. The next day, the
    E/C learned that Dr. Tuer no longer accepted “workers’
    compensation.” The following day (February 9), the E/C informed
    Harman of this, authorized Dr. Landman, an allergist who
    practices in Aventura, and provided appointment details.
    Harman, who lives in Palm Beach, cancelled the appointment
    with Dr. Landman on grounds that Aventura was too far for him
    to travel. On February 28, 2019, the E/C, attempting to
    accommodate Harman, authorized Dr. Landman’s colleague, Dr.
    Mark, who practices approximately 46 miles and 45-50 minutes
    away from Harman’s home at a satellite office in Pembroke Pines.
    The E/C offered to provide transportation at the E/C’s expense, if
    needed. However, Harman declined to attend the appointment
    with Dr. Mark, claiming Pembroke Pines was also too far from his
    home.
    Harman filed a petition for benefits (PFB) on February 19,
    2019, seeking a one-time change from Dr. Koutsonikolis to Dr.
    Tuer. In the Uniform Pre-Trial Stipulation filed in June 2019, he
    asserted the identical claim request. At final hearing, Harman
    articulated that the sole issue before the JCC was his claim for a
    one-time change from Dr. Koutsonikolis. However, he
    acknowledged that Dr. Tuer would not accept workers’
    compensation 1 and he did not pursue his authorization. Harman
    argued that the E/C’s response to the one-time change request was
    not timely unless the distance to the new doctor was “reasonable,”
    as calculated from his home and not his workplace, and that the
    distance to Dr. Mark’s office was unreasonable because 50 miles
    1  At hearing, the insurance adjuster testified that Dr. Tuer,
    when contacted to acquire an appointment for Harman, refused to
    accept “workers’ compensation.” She was uncertain whether the
    refusal was based on refusal to accept patients injured at work
    generally or to accept payment under the Florida Workers’
    Compensation Health Care Provider Reimbursement Manual. See
    Fla. Admin. Code Ann. r. 69L-7.020(1) and sections 440.13(12) and
    (13), Florida Statutes (2017).
    2
    “is the cut-off for reasonable distance in Florida per Commercial
    Carrier.” See Commercial Carrier Corp. v. Fox, 
    400 So. 2d 154
     (Fla.
    1st DCA 1981) (holding that for Claimant’s compensable back
    injury, which precluded riding long distances, E/C’s
    “manipulative” provision of doctors 50 miles away followed by
    provision eleven months later of local physician constituted refusal
    to authorize medical treatment).
    The E/C defended the PFB on grounds it had timely
    authorized an alternate physician via Drs. Landman and Mark.
    The E/C argued that Dr. Mark’s office was only twenty-eight miles
    from Harman’s place of employment with the Employer, and that
    Harman had not presented evidence of an alternative allergist
    “within a more reasonable distance to [Harman’s] workplace or
    home.” In its trial memorandum and at merits hearing, the E/C
    argued that: 1) Dr. Mark was the closest provider that it could
    locate (in part because of the rarity of allergists in the workers’
    compensation system); 2) that no “law” specifies what kind of
    search an E/C must perform; and 3) Harman had no limitations,
    physical restrictions, or infirmities that would prohibit his sitting
    in a car for any distance, and that free transportation was offered.
    At the final hearing, Harman’s counsel asserted that the only
    facts the JCC needed to consider were those related to distance.
    He argued as follows:
    I am not saying that [the E/C] didn’t respond, I am not
    saying that [the E/C] responded with a doctor outside of
    the specialty or that [the E/C] responded with a clinic
    rather than a specific doctor. Those are all requirements,
    too, and [the E/C] did all of that, but the doctor that [the
    E/C] responded with is outside of 50 miles and that is
    unreasonable.
    In the final order, the JCC articulated the sole issue before
    her as, “the reasonableness of Dr. Mark considering the
    time/distance travel, which is within the discretion of the [JCC].”
    She ultimately determined that the travel time and distance to Dr.
    Mark’s office was unreasonable. Furthermore, despite the
    “commendable efforts” by the E/C, she found that the offer of
    transportation by the E/C did not necessarily render the distance
    3
    reasonable. The final order granted the request for a one-time
    change of physician and detailed, “[t]he Employer/Carrier may
    select an authorized allergist within a reasonable distance from
    Mr. Harman’s residence.” The JCC granted Harman’s request for
    attorney’s fee and costs.
    Harman filed a motion for partial rehearing or to vacate the
    order, arguing that the JCC erroneously determined that because
    the E/C provided an allergist’s name within five days, despite
    declaring Dr. Mark as an unreasonable alternate, section
    440.13(2)(f) was satisfied, and the E/C retained the right of
    selection—effectively giving the E/C a second bite at the apple. The
    JCC summarily denied the partial rehearing request. On appeal,
    Harman challenges only the portion of the final order that retains
    the E/C’s right to select the alternate physician. The E/C did not
    appeal any portion of the final order.
    II. Analysis
    “A JCC’s factual findings will be upheld if supported by
    competent substantial evidence (CSE), regardless of whether
    ‘other persuasive evidence, if accepted by the JCC, might have
    supported a contrary ruling.’” City of Bartow v. Flores, 
    301 So. 3d 1091
    , 1094 (Fla. 1st DCA 2020) (citing Pinnacle Benefits, Inc. v.
    Alby, 
    913 So. 2d 756
    , 757 (Fla. 1st DCA 2005)). “However, to the
    extent the issues raised on appeal concern statutory construction,
    a question of law is presented, and our review is de novo. 
    Id.
     (citing
    Palm Beach Cty. Sch. Dist. v. Ferrer, 
    990 So. 2d 13
    , 14 (Fla. 1st
    DCA 2008)).
    Harman argues the necessary implication of the JCC’s
    determination that the E/C’s alternate physician selection (upon
    his request for one-time change) was unreasonable, which the E/C
    did not appeal, is that the E/C did not “timely” authorize a one-
    time change, and therefore, the right of selection became his. He
    clarifies that he is not arguing that the E/C’s response was not
    timely, but that its authorization was not timely.
    The E/C responds that Harman failed to preserve the
    argument he now asserts on appeal, because the parties agreed at
    the final hearing that the only issue for the JCC to determine was
    4
    the reasonableness of the distance between Harman’s residence
    and Dr. Mark’s office. Furthermore, Harman maintained one claim
    throughout the proceedings—authorization of Dr. Tuer, despite his
    acknowledgement that he was not an option. Harman never
    amended his claim to request an allergist of his selection or
    introduce evidence of available allergists within a 50-mile distance
    from Harman’s home. The E/C asserts that Harman got exactly
    what he asked for—an alternate allergist within 50-miles of his
    home. We agree.
    As an initial matter, we agree with the E/C that Harman
    failed to preserve the specific arguments he now raises on appeal.
    At the merits hearing, the parties agreed the “only” issue before
    the JCC was the reasonableness of Dr. Mark as it relates to
    distance. Granted, Harman’s pre-trial memorandum asserted, “If
    the Court’s determination is, ultimately, that the distance is
    ‘reasonable,’ then the E/C have timely responded. However, if the
    Court’s determination is that the distance is unreasonable, then
    the E/C have not timely responded.” But, he failed to raise below
    the argument that the E/C failed to provide an alternate physician,
    thus, triggering a forfeiture of the E/C’s right of selection. Notably,
    in the final order, the JCC specifically articulated that the issue of
    timeliness of provision had not been raised at the hearing. 2
    Regardless, even if Harman properly raised below the
    argument he now asserts on appeal, his argument fails on the
    merits. Harman’s request for a one-time change from Dr.
    Koutsonikolis to Dr. Tuer was never amended despite his
    concession that Dr. Tuer was not an option. He conceded that the
    E/C provided an alternate physician within five days of the written
    request, inclusive of authorization of an appointment as well as
    additional options. His only argument was that the provided
    alternates practiced too far from his home. Furthermore, he never
    amended his claim for Dr. Tuer to another claimant-selected
    physician or introduce evidence of his chosen allergist practicing
    2 In the award provision, the JCC footnoted the following: “No
    claim has been made that the Employer/Carrier’s response was not
    provided within the statutory 5-day timeframe, as required by
    section 440.13(2)(f), Florida Statutes.”
    5
    within a 50-mile radius who accepted workers’ compensation
    patients and/or fee schedule payment. Ultimately, the JCC
    awarded the identical claims that were specifically pled and
    requested—an alternate physician within a 50-mile radius of his
    home and attorney’s fees and costs.
    Because the JCC and the parties did not have the benefit of
    this Court’s opinion in Flores, 
    301 So. 3d 1091
    , supplemental
    briefing was requested. 3 We agree with the E/C that Flores is
    readily distinguishable. Factually, unlike the E/C in Flores who
    delayed for 56 days, the E/C here did not leave Harman waiting for
    an affirmative action. Harman never argued that the E/C failed to
    timely provide an alternate physician but only that the
    authorization was unreasonable, based solely on distance factors. 4
    Additionally, he never asserted that the right of selection was
    forfeited by the E/C.
    Section 440.13(2)(f), specifically the fourth sentence, states,
    “If the carrier fails to provide a change of physician as requested
    by the employee, the employee may select the physician and such
    physician shall be considered authorized if the treatment being
    provided is compensable and medically necessary.” § 440.13(2)(f),
    Fla. Stat.
    Harman never argued that the E/C failed to authorize an
    alternate allergist within five days, acquire an appointment date,
    or was untimely in additional offers of alternate allergists upon Dr.
    Tuer’s refusal to provide treatment. The third sentence of the
    3 In Flores, an E/C authorized an alternate doctor the day after
    the request for one-time change but did not provide an
    appointment date until 56 days after receiving the request. 301 So.
    3d at 1093. This Court held that section 440.13(2)(f) dictates that
    “the E/C forfeits the right of selection if it subsequently fails to
    provide the alternate physician by unreasonable delay in
    acquisition of an appointment date.” Id. at 1099.
    4 As the E/C did not appeal the order awarding Harman an
    alternate physician, the merits of the reasonableness of distance of
    travel determination are not before us.
    6
    statute sets forth only two requirements regarding the alternate
    physician—timely authorization and practice within the same
    medical specialty. Id. Here, the E/C satisfied both. The statute
    imposes no criteria regarding distance of travel as a criterion for
    the E/C’s retaining its right of selection.
    In Flores, this Court held that the E/C forfeits the right of
    selection under section 440.13(2)(f) if it fails to provide the
    authorized alternate physician by “unreasonable delay in
    acquisition of an appointment date.” 301 So. 3d at 1099. There is
    no dispute in this case regarding the timeliness of authorization of
    an alternate physician, and Harman has never complained that he
    was not provided appointment dates.
    For these reasons, we affirm the JCC’s award of an alternate
    physician of the E/C’s selection.
    AFFIRMED.
    RAY and NORDBY, JJ., concur.
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    Matthew Carrillo of The Law Firm of Carrillo & Carrillo, P.A.,
    Gainesville, for Appellant.
    Therese A. Savona and Geraldine P. Pena of Cole, Scott & Kissane,
    P.A., Orlando, for Appellees.
    7
    

Document Info

Docket Number: 19-4071

Filed Date: 9/15/2021

Precedential Status: Precedential

Modified Date: 9/15/2021