5 days - does it really mean 5 days?

Well, the First District Court of Appeal has now decided to weigh in on one of those small, but important, things which has been debated endlessly since the 2003 law changes - what does 5 days REALLY mean?

For context, Florida law since 2003 has provided that the injured worker has a right to a one-time change in treating physicians once per claim. The procedure is that the injured worker submits a written request for the change, and the employer/carrier have 5 days to respond. Setting aside some of the other problems with the vagueness of the statute, one of the first questions which arose at the time was...5 calendar days or 5 business days?

The prevailing wisdom, and most of the lower court decisions over the past few years (such as Judge Murphy's decision below), held that it was 5 business days. This was consistent with language elsewhere in the rules and in Chapter 440, and would also discourage gamesmanship (such as submitting requests on a Friday afternoon and allowing 2 of the 5 days to be eaten up over the weekend).

But, as sometimes happens, the prevailing wisdom was wrong. In Hinzman v. Winter Haven Facility Operations LLC/Gallagher Bassett , 1st DCA Case #1D12-2382, Opinion entered February 18, 2013, the panel held that the plain language of the statute is what goverrns, since it is unambiguous on its face, and that 5 days means 5 calendar days. The policy concerns with gamesmanship and inconsistency were addressed to the legislature. Here's a link to the actual opinion: Hinzman Opinion

At the end of the day, it just means that adjusters and defense attorneys need to be even more alert for one time change requests, and Claimant's attorneys need to closely monitor the 5 days and, ideally, not try to take advantage of a favorable ruling and risk a legislative backlash.

Brian D.


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