Board Rule 202(c) provides in pertinent part that when an employer fails to properly provide the procedures for selection of physicians, the employee is authorized to select a physician who is not listed on the employer’s panel of physicians. That physician so selected becomes the authorized treating physician, and the employee may make one change from that physician to another physician without approval of the employer and without an order of the board.

The Appellate Division recently adopted similar findings when an ALJ granted an injured employee’s Change of Physician twice due to the employer’s failure to explain the employee’s rights in seeking medical treatment prior to treating with Concentra which was not her chosen medical provider. The employee treated with Concentra approximately 13 times before requesting her first Change of Physician from Concentra to a specific physician. Approximately a month later, the employee requested a second Change of Physician.

The employer objected to the second Change of Physician. It argued that Concentra was the original authorized treating physician and the employee had exhausted her one free chance under the Act. The Appellate Court found that since the employee was never explained her rights she was entitled to the original change from Concentra and to her second change a month later.