Hansen & Adkins Auto Transp. v. Martin
| Decision Date | 10 December 2018 |
| Docket Number | No. 1D17-3339,1D17-3339 |
| Citation | 259 So.3d 994 |
| Parties | HANSEN AND ADKINS AUTO TRANSPORT and Gallagher Bassett Services, Appellants, v. James MARTIN, Appellee. |
| Court | Florida District Court of Appeals |
Barbara K. Case of Barbara K. Case, P.A., North Palm Beach, for Appellants.
Cynthia L. Denker of Harrell & Harrell, P.A., Jacksonville, for Appellee.
In this workers' compensation case, the Employer and Carrier appeal the Judge of Compensation Claims' order awarding the injured worker retroactive authorization of surgery performed by an unauthorized provider. In the order, the JCC found that the E/C wrongfully denied a recommendation for cervical fusion surgery by an authorized provider. In addition, the order concluded that a different surgical procedure, completed later by an unauthorized provider, was medically necessary to treat the compensable workplace injury. On appeal, the E/C raise issues of causation and medical necessity. We conclude that the originally recommended surgery was not wrongfully accepted by the JCC. However, we reverse as to the different surgery actually performed by the unauthorized provider in this case, because the JCC relied on inadmissible medical opinion evidence to find the surgery medically necessary.
On September 14, 2015, Claimant sustained a compensable workplace injury to his neck. Although a cervical MRI scan performed soon after the injury revealed significant preexisting degenerative changes, the E/C provided medical care for his neck pain including pain management, injections, and a surgery evaluation by Dr. Ero, an authorized orthopedic surgeon. When Dr. Ero recommended cervical fusion surgery at multiple levels, the E/C obtained an independent medical examiner's opinion that Claimant's workplace injury was a strain/sprain only and was not the major contributing cause of any condition for which the fusion surgery was recommended. Based on this opinion, the E/C denied Dr. Ero's request for authorization of the recommended surgery.
In his initial petition for benefits, Claimant sought authorization of the cervical fusion surgery recommended by Dr. Ero. But before that issue was tried, he went to an unauthorized provider and had a different, less intrusive surgical procedure. Claimant subsequently amended his petition for benefits to include a claim for the surgical procedure that had been performed. Although Claimant eventually abandoned the claim for the recommended cervical fusion surgery, the E/C raised a major contributing cause defense to both claims.
In the order now on appeal, the JCC correctly noted that an injured worker may obtain wrongfully denied medical treatment at the expense of the E/C under the self-help provisions of section 440.13(2)(c), Florida Statutes (2015). See, e.g. , Parodi v. Fla. Contracting Co. , 16 So.3d 958, 962 (Fla. 1st DCA 2009) (). In first determining that the E/C here wrongfully denied surgery, the JCC rejected the E/C's causation defense and found that Claimant satisfied his burden of showing that the workplace injury is the major contributing cause of the need for surgery as required by section 440.09(1), Florida Statutes (2015). The JCC then found that the surgery actually performed by the unauthorized self-help provider was sufficiently similar to that recommended by Dr. Ero and was medically necessary to treat the compensable injury.
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