FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D19-4071
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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
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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
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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.”
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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.
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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.
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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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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.
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