In June, the Florida First District Court of Appeal rendered Lafleur v. The Arbor Holding Co. The court reversed the trial judge, citing Myers v. Pasco County School Board, which was rendered just over a year prior.

Judge David Langham

The court noted that the trial judge in Lafleur "did not have the benefit of the Myers opinion before rendering the order under review." 

The Lafleur opinion is concise. It reminds that in Myers the court concluded 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.’"

In Lafleur, the injured worker was treating with a doctor specializing "in physical medicine and rehabilitation." Upon request for a "one-time change," Section 440.13(2)(f), the employer/carrier timely authorized "an anesthesiologist." The court concluded that this authorization did not "satisfied their statutory obligation to provide a physician in the 'same' specialty as the previously authorized physician."

The Myers decision provides more explanation on the subject. There, the injured worker was treating with an orthopedic surgeon and requested a one-time change. The employer/carrier authorized a neurosurgeon. A petition was then filed seeking an order compelling provision of an alternate orthopedic surgeon.

The Judge of Compensation Claims "denied the petition reasoning that the term 'specialty' is broader than the 'specialty of [the] physician' and 'should be extended to' the types of conditions the doctor treats."

The Myers Court noted that: 

"This one-time change must be made with a doctor who practices in the same specialty as the originally authorized physician. The doctor's specialty is determinative, 'regardless of who makes the selection.'"

The last sentence is worthy of consideration. This is the law regardless of whether the injured worker or the employer/carrier believes some different specialty might be as efficacious or more. Regardless of what a physician does, it is the title that matters.

"It is the specific intent of the Legislature that workers' compensation cases shall be decided on their merits.” Therefore, a "per se application ... of the administrative rules" might directly conflict with the "specific legislative intent of the Florida Workers' Compensation Law."

Thus, the rules might sometimes have to bend to accommodate the law. However, the outcome is different when the law itself is unyielding, though the perceptively rigid application might likewise appear to some as contrary to that overall, general intent that "merits" intent quoted in Burgess v. Buckhead Beef.

Several years ago, the court in Watkins v. Wolf explained that the statute itself should be read strictly. Conceding that the workers' compensation statute of limitations "may 'exalt form over substance,'” the court nonetheless required that a "claim" (now petition for benefits) has to be filed within the limitation period. The court explained there is "no express or implied good-faith exception" to that statutory language.

Thus, a claim received by the Division of Workers' Compensation "one day after the statutory period had expired" was not timely, and the case was dismissed.

Ten years earlier, the court decided Mahoney v. Sears, Roebuck & Co. There, the court used a similar reference regarding it being "contrary to the basic principles of Chapter 440 to exalt form over substance." However, the court explained that "it is not the province of the deputy (now JCC) or of this court, but of the Legislature, to supply appropriate remedy" regarding application of the plain language of the workers' compensation law.

In the context of a statutory change in physician, this might make for an interesting debate. If the Legislature were to consider changing "quite simply same" in favor of broader language like "similar," there is the potential for significant litigation.

There is some human tendency toward perception bias. That is, that we have inherent, human, tendencies. As has been variously stated, "Beauty is in the eye of the beholder." Thus, what an injured worker or an employer might see as "similar" might be seen as vastly dissimilar by the other.

A legislative standard that required "similar" rather than "same" might require significant judicial involvement regarding various parties' perceptions of what is or is not actually similar. In a particular case, what is similar to one adjudicator might be vastly different than what another adjudicator sees as "similar" regarding the same specialty providers in another case.

Furthermore, it is possible that an appellate panel might well see "similar" differently than a trial judge does. The potentials are various and numerous. 

This illustrates, of course, that when strict rules are applied, there could be instances in which one does not like the outcome. But, similarly, it is equally possible that one would not like the outcome if a more relaxed standard or rule were applied. The potential for dissent exists in either instance, but for different reasons perhaps. 

That, across America, has been a workers' compensation struggle for many years, illustrated in such concepts as physician choice, expert medical advisers, impairment rating benefit calculation, evidence-based medicine and so much more.

As judicial discretion decreases, so increases consistency and predictability, and . But, what is consistently predictable is that the appellate court and judges strive to follow the law as written, leaving changes to the legislatures that wrote it.

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.