Tri-City Electric v. Werner

5 So. 3d 752, 2009 Fla. App. LEXIS 1678, 2009 WL 500629

Opinion

PER CURIAM.

The Employer/Carrier (E/C) challenges the Judge of Compensation Claims’ (JCC) award of temporary partial disability benefits, a second, one-time change in physicians, and the award of attorney’s fees and costs. We affirm in part, reverse in part, and remand. Our review indicates the JCC’s award of temporary partial disability benefits, as well as entitlement to an attorney’s fee and costs for securing the same, is supported by competent, substantial evidence. Consequently, we affirm on these issues. However, the JCC erred as a matter of law by awarding Claimant a second, one-time change in physician. Accordingly, we reverse that award, as well as the award of attorney’s fees and costs based on securing that benefit.

Claimant sustained a hernia and a low back injury as a result of his February 28, 2007, accident. When Claimant was dissatisfied with his first general surgeon, he requested and received a change of physician. Later, he came under the care of an orthopedic physician for his low back injury. When he became dissatisfied with the authorized orthopedic physician, he once again requested a change of physician. The E/C denied his request. The JCC found the E/C’s denial was “untenable because the nature of the claimant’s injuries requires different specialties.”

We addressed whether section 440.13(2)(f), Florida Statutes, permitted one change in physician for each accident, or one change per specialty, in Perez v. Rooms To Go, 997 So.2d 511, 512 (Fla. 1st DCA 2008). In that case, we held the plain language of the statute allowed only one change per accident. Because the JCC erred in awarding a second, one-time change in physician, the award of an attorney’s fee and costs for obtaining that benefit is reversed as well.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

HAWKES, C.J., PADOVANO and ROBERTS, JJ., concur.