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Florida First DCA rules in worker’s compensation case that employer retained right to choose alternate physician even though JCC ruled that employer’s initial choice of alternate physician was located too far from employee’s residence

On September 15, 2021, in Harman v. Merchant Transport, CCMSI, No. 1D19-4071, the Florida First DCA affirmed a Judge of Compensation Claims (JCC) order which required an employer/carrier to provide a worker’s compensation claimant with an alternate physician pursuant to section 440.13(2)(f), Florida Statutes (2017), but preserved the E/C’s right of selection of the alternate physician. At the hearing before the JCC, the claimant’s attorney indicated that the only issue was that the alternate physician that had been offered by the E/C had offices too far away from the claimant’s home (46 miles). The JCC agreed that the distance was unreasonable and ordered the E/C to select another physician “within a reasonable distance from Mr. Harman’s residence.” On appeal, the claimant argued that 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 onetime change, and therefore, the right of selection became his. The First DCA noted that Section 440.13(2)(f) expressly provides that the employee only has the right to select the physician if the carrier fails to provide a change of physician as requested by the employee. The First DCA concluded that did not occur in this case because the E/C did timely provide an alternate, and the statute imposes no criteria regarding distance of travel as a criterion for the E/C’s retaining its right of selection.