Hidden v. Day & Zimmerman

• Citation: 202 So.3d 441
• Decision Date: 07 October 2016
• Docket Number: No. 1D16–1045.,1D16–1045.
• Parties: Dane HIDDEN, Appellant, v. DAY & ZIMMERMAN/Florida Power & Light Co./Broadspire, Appellees.
• Court: Court of Appeal of Florida (US)

202 So.3d 441

Dane HIDDEN, Appellant,

v.DAY & ZIMMERMAN/Florida Power & Light Co./Broadspire, Appellees.

No. 1D16–1045.

District Court of Appeal of Florida, First District.

Oct. 7, 2016.

James T. Walker of Hayskar, Walker, Schwerer, Dundas & McCain, P.A., Ft. Pierce, for Appellant.

William H. Rogner and Derrick E. Cox, Winter Park, for Appellees.

PER CURIAM.

In this workers' compensation case, Claimant argues that the Judge of Compensation Claims (JCC) erroneously (1) excluded certain medical evidence, and (2) failed to rule on his entitlement to indemnity benefits. We affirm the second issue without further comment, and we affirm the first issue for the reasons that follow.

Factual and Procedural Background

Claimant alleged that he developed a sudden pain in his neck when opening heavy lids on equipment lockers at work on May 22, 2015. Although Claimant lost consciousness, no injury was readily observable. Claimant was transported by ambulance to an emergency room, but the Employer/Carrier (E/C) did not authorize this or any other medical care. The E/C did not accept any injury as compensable, theorizing that Claimant's neck pain was preexisting and not work-related.

Claimant subsequently saw two doctors that were not authorized by the E/C to treat him: Dr. Brown, an orthopedic surgeon, and Dr. Estes, a physical rehabilitation and pain management specialist. Dr. Brown diagnosed Claimant with “whiplash-type syndrome” and cervicalgia (neck pain), and prescribed physical therapy and medication. Dr. Estes also diagnosed Claimant with cervicalgia—as well as a sprain of the cervical spine and a small posterior C5–C6 disc protrusion—and administered cervical epidural steroid injections. Both Drs. Brown and Estes opined that Claimant's symptoms were caused by the work-related incident, although Dr. Estes added that the disc protrusion was not necessarily work-related.

Claimant thereafter filed a petition for benefits seeking, among other things, a determination that the injuries diagnosed by Drs. Brown and Estes are compensable. At the hearing before the JCC, Claimant submitted the depositions of Drs. Brown and Estes in support of the petition. The E/C objected to the medical opinions in the depositions based on section 440.13(5)(e), Florida Statutes (2014), which prohibits the admission of medical opinion evidence in workers' compensation proceedings from anyone other than an authorized treating physician, independent medical examiner (IME), or expert medical advisor (EMA). Claimant responded that the opinions of Drs. Brown and Estes were admissible because the two doctors were authorized by operation of law pursuant to section 440.13(2)(c), which permits an injured employee to obtain so-called “self-help” at an E/C's expense when the E/C “fails to provide initial treatment ... after request by the injured employee.”

The JCC excluded the medical opinions in the depositions, reasoning that because the opinions were not admissible ab initio, they could not establish their own admissibility by their content—i.e., the opinions could not “bootstrap” themselves into evidence. And, because without the opinions of Drs. Brown and Estes there was no medical evidence to establish that Claimant's injuries were work-related, the JCC denied the petition seeking compensability and all other benefits sought by Claimant.

This appeal follows.

Analysis

Section 440.13(5)(e), by its plain language, excludes from workers' compensation proceedings the medical opinions of any doctor (other than IMEs and EMAs) who has not been authorized by the employer/carrier. And section 440.13(2)(c), by its plain language, permits self-help (and thus authorization by operation of law) only “if the initial treatment or care is compensable and medically necessary.” Thus, the medical opinions of an unauthorized self-help doctor are not admissible unless and until it is established—by other admissible evidence and medical opinions—that the care rendered by the self-help doctor was compensable and medically necessary. See Miller Elec. Co. v. Oursler, 113 So.3d 1004, 1009 (Fla. 1st DCA 2013) (explaining that “a claimant seeking ... to introduce medical opinions ordinarily excluded by section 440.13(5)(e), can establish the factual circumstances of the care at issue with ‘fact-purposes only’ evidence from the provider of that care, but must also present medical opinions from another source ... to establish ... the compensability and medical necessity ... of the care at issue”); Parodi v. Fla. Contracting Co., 16 So.3d 958, 962 (Fla. 1st DCA 2009) (“The employee retains the burden ... to establish that he ... obtained care that is compensable, reasonable, and medically necessary.”). The...