## F IRST 

## D ISTRICT 

## C OURT OF 

## A PPEAL 

## S TATE OF 

## F LORIDA

_____________________________
No. 1D 17

- 5457

_____________________________
L AURA M YERS , Appellant,

v.

P ASCO C OUNTY S CHOOL B OARD and J OHNS E ASTERN C OMPANY , I NC

. , Appellee s

.

_____________________________

On appeal from an order of the Judge of Compensation Claims. Stephen L. Rosen , Judge

.
Date of Accident: August 26, 2016.

June 4, 2018

J AY , J.,

In this workers’ compensation case, the Claimant seeks relief from a summary final order of the Judge of Compensation Claims (JCC) denying h er request for a “one

- time change” of physician as permitted by section 440.13(2)(f), Florida Statutes (2016). For t he reasons set forth below, we reverse.

“ [A] claimant who sustains a compensable injury is entitled to

a one

- time change in treating physician as an absolute right if a written request is made during the course of treatment. ” Zekanovic2 v. Am. II, Corp. , 20 8 So. 3d 851, 852 (Fla. 1st DCA 2017). This one

time change must be made with a doctor who practices in the same
sp ecialty as the originally authorized physician

. Id

. ( citing Retailfirst Ins. Co. v. Davis , 207 So. 3d 1035 , 1 0 37 (Fla. 1st DCA 2017 ) )

. T he doctor ’s special ty is determinative , “regardless of who makes the selection.” Zekanovic , 208 So. 3d at 852.

Here , when the Claimant requested a one

- time change from h er orthopedic surgeon, the Employer/Carrier (E/C) authorized a neurosurgeon. When the Cl aimant filed a petition alleging that the authorization failed to meet the statutory requirements , the JCC 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

. Because orthopedic surgeons and neurosurgeons both treat bac k injuries
, and because the Claimant has a compensable back problem

, the JCC concluded that the E/C ’s authorization was in compliance with the statute

. However, the J CC’s analysis is not grounded in the lan guage of the statute

. S ection 440.13(2)(f) requires that the one

- time chang e be made with a physician who practices in the “ same specialty ” as the originally authorized doctor. Zekanovic , 208 So. 3d at 852 (emphasis added)

. A physician who provides similar services in a different specialty does not qualify as a doctor in the “same specialty” because

— quite simply

— “ s ame” is different than “similar.” See
, e.g. , Clare v. Lynch , 220 So. 3d 1258 , 1261 (Fla. 2d DCA 2017) ( “[I]t is clear that the legislature intended that specialists from the ‘same specialty’ be required as corroborating experts in medical malpractice litigation. While providers from ‘similar’ specialties may have been previously permitted, they are not permitted any longer. . . . The trial court’s ruling in this case, which effectively resurrects the prior statutory language by crediting an affidavit from a provider in a ‘similar’ specialty, constitutes a clear departure from the essential requir ements of the law that cannot be countenanced.” ).
Thus, t he neurosurgeon authorized by the E/C did not practice in the “same specialty” as the originally authorized orthopedic surgeon

. Id

. Consequently , w e reverse the order denying the Claimant’s claim fo r a one

- time change

— and the associated denial of the claim for attorney’s fees and costs

— and remand for further3 proceedings in accordance with this opinion.

R EVERSED and R EMANDED

. W OLF and W INSOR , JJ., concur

.

_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331

.

_____________________________

Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale
, for Appellant.

Stephen M. Barbas and Kristen H. Emerson of Barbas, Nunez, Sanders, Butler & Hovsepian, Tampa
, for Appellee s

.