VICTOR GONZALEZ,

Appellant,

v.

QUINCO ELECTRICAL, INC.

AND ZENITH INSURANCE

COMPANY,

Appellees.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D14-5395

_____________________________/

Opinion filed July 15, 2015.

An appeal from an order of the Judge of Compensation Claims

Thomas W. Sculco, Judge.

Roland Tan, Jr., Orlando, for Appellant.

William H. Rogner, Orlando, for Appellees.

KELSEY, J.

Claimant appeals a final compensation order of the Judge of Compensation 

Claims holding, among other things, that the employer/carrier is deemed to have 

timely responded to claimant’s request for a one-time change of physician under 

section 440.13(2)(f), Florida Statutes (2013). We affirm the JCC’s order. In addition, 
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we hold that claimant’s request for a one-time change was not effective to give 

proper notice to the E/C because it was set forth only within a post-petition document 

that, according to its title and on its face, appeared to have an entirely different 

purpose. Under these circumstances, the JCC acted within his discretion in 

concluding that the E/C’s response to the request was deemed timely.

Section 440.13(2)(f), Florida Statutes (2013), allows the E/C only five days to 

respond to a request for a one-time change of physician, failing which the claimant’s 

requested physician must be considered authorized if the treatment being provided 

is compensable and medically necessary. If the E/C receives a request for a one-time 

change and responds to it properly within the statutory period, the form and context 

of the request are not an issue, because the fact of the timely response establishes 

that the notice was effective. If, on the other hand, the E/C receives a request and 

fails to respond to it within the statutory period because of the form or context of the 

request, an issue may arise as to whether the notice was effective to trigger the E/C’s 

obligation. That is the situation here.

Claimant’s counsel appeared of record in the petition for benefits. See Fla. 

Admin. Code R. 60Q-6.104(1) (filing of petition or claim constitutes the filing 

attorney’s appearance, and “other attorneys” shall file a separate notice of 

appearance). Nevertheless, three weeks later claimant’s counsel also filed a 

document titled “Notice of Appearance,” which contained the information typically 
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included in such a notice. On the second page, however, counsel inserted a request 

for a one-time change of treating physician pursuant to section 440.13(2)(f). Counsel 

admitted before the JCC that he “took advantage of” his belief that adjusters do not 

always read in full every document they receive.

The E/C discovered the request for a one-time change within the “Notice of 

Appearance” one day after the five-day statutory window ended, after discovering

that the same attorney had used the same tactic in another pending case. The E/C 

authorized a new physician for claimant that same day, although not the physician 

that claimant had requested. Claimant asserted that the E/C lost the right of selection 

by not responding to the request within five days. The JCC found that under the 

specific circumstances of the case, the “Notice of Appearance” did not trigger the 

E/C’s obligation to authorize an alternative physician, and that the E/C’s 

authorization of physician was valid when made.

The JCC’s order was consistent with the legislature’s expressly stated intent 

that the workers’ compensation system must “ensure the prompt delivery of benefits 

to the injured worker” and must be “an efficient and self-executing system which is 

not an economic or administrative burden.” § 440.015, Fla. Stat. (2013). Resort to 

adversarial proceedings in workers’ compensation cases should be a last recourse to 

resolve intractable disputes between claimants and carriers. See S&A Plb’g v. Kimes, 

756 So. 2d 1037, 1041 (Fla. 1st DCA 2000). In this case, the tactic that claimant’s 
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counsel used had the effect of delaying the delivery of benefits and increasing 

litigation and expense, directly contrary to the self-executing system intended for 

workers’ compensation claims. We have said consistently that we are obligated to 

interpret the Workers’ Compensation Act in its entirety and as a consistent whole.

E.g., Roberson v. Winn Dixie Stores, Inc., 669 So. 2d 294, 296 (Fla. 1st DCA 1996).

Consistent with these requirements and the stated intent of the workers’ 

compensation statutory scheme, a claimant’s request for a one-time change of 

physician under section 440.13(2)(f) should not be inserted into a document that 

appears on its face to have exclusively another purpose. Rather, the request should 

be readily apparent, unobscured, and unambiguous, to advance the purpose of 

placing the E/C on notice that such a request is being made in that document. 

This dispute was not the result of inadvertence or ignorance, but rather was 

the result of an attorney’s intentional act that we consider inappropriate sharp 

practice and gamesmanship. In light of that fact, we further observe that the Oath of 

Admission to The Florida Bar obligates all Florida attorneys to “employ for the 

purpose of maintaining the causes confided to me such means only as are consistent 

with truth and honor,” and to pledge “fairness, integrity, and civility” to opposing 

parties and their counsel in court and in all written and oral communications.

Likewise, The Florida Bar Creed of Professionalism requires lawyers to “strictly 

adhere to the spirit as well as the letter of [the legal] profession's code of ethics, to 
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the extent that the law permits and . . . at all times be guided by a fundamental sense 

of honor, integrity, and fair play.” These principles are embodied in the Rules 

Regulating The Florida Bar. R. Regulating Fla. Bar 4–3.3 cmt. (lawyers have the

duty “to avoid conduct that undermines the integrity of the adjudicative process”); 

R. 4–3.4 (entitled “Fairness to Opposing Party and Counsel,” and stating in the 

comment that fairness in the adversary system “is secured by prohibitions against 

destruction or concealment of evidence, improperly influencing witnesses, 

obstructive tactics in discovery procedure, and the like”). Lawyers’ adherence to 

these pledges and duties would eliminate the improper “gotcha” tactics that generate 

disputes such as this that unfairly and needlessly consume public and private 

resources while delaying the workers’ compensation process and making it more 

expensive. See Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337, 1339 (Fla. 3d 

DCA 1979) (“Today, we might say that the courts will not allow the practice of the 

‘Catch-22’ or ‘gotcha!’ school of litigation to succeed.”).

On these facts, the JCC properly determined that the request for one-time 

change of physician did not constitute effective notice to the E/C and that the E/C’s 

response was deemed timely. Accordingly, we affirm.

THOMAS, J., CONCURS; MARSTILLER, J., CONCURS IN RESULT ONLY.