Marie Lafleur v. The Arbor Holding Company LLC d/b/a Barrington Terrace of Fort Myers and United Wisconsin Insurance Company

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-0381
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MARIE LAFLEUR,
Appellant,
v.
THE ARBOR HOLDING COMPANY
LLC d/b/a BARRINGTON TERRACE
OF FORT MYERS and UNITED
WISCONSIN INSURANCE
COMPANY,
Appellees.
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On appeal from an order of the Judge of Compensation Claims.
Frank Clark, Judge.
Date of Accident: November 23, 2014.
June 12, 2019
RAY, J.
In this workers’ compensation case, Claimant appeals an
order of the Judge of Compensation Claims (JCC) denying
Claimant the right to select the doctor who would serve as her one-
time change of physician available under section 440.13(2)(f),
Florida Statutes (2014). We reverse on the authority of Myers v.
Pasco County School Board, 246 So. 3d 1278 (Fla. 1st DCA 2018), *
because the record does not contain sufficient evidence to support
the JCC’s finding that the Employer/Carrier’s authorization of an
anesthesiologist, although made within five calendar days of
Claimant’s request for a one-time change, satisfied their statutory
obligation to provide a physician in the “same” specialty as the
previously authorized physician who specializes in physical
medicine and rehabilitation. Section 440.13(2)(f) contemplates
that the originally authorized physician be “in the same specialty
as the changed physician.” Myers held that “[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.’” Id. at 1279.
REVERSED and REMANDED for further proceedings in
accordance with this opinion.
ROBERTS 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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Cory J. Pollack, Fort Myers, and Bill McCabe, Longwood, for
Appellant.
Robert C. Barrett and McKensey M. Sims of Rissman, Barrett,
Hurt, Donahue, McLain & Mangan, P.A., Orlando, for Appellees.
*The JCC did not have the benefit of the Myers opinion before
rendering the order under review.
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