Cespedes v. Yellow Transp., Inc.
| Decision Date | 24 April 2013 |
| Docket Number | CASE NO. 1D12-0677 |
| Parties | MANUEL CESPEDES, JR., Appellant, v. YELLOW TRANSPORTATION, INC. (URC) / GALLAGHER BASSETT SERVICES, INC., Appellees. |
| Court | Florida District Court of Appeals |
FILE MOTION FOR REHEARING AND
An appeal from an order of the Judge of Compensation Claims.
Date of Accident: March 20, 2006.
Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
William H. Rogner and Scott B. Miller of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.
In this workers' compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) that denies in part Claimant's claim for workers' compensation benefits. Claimant argues the JCC erred by (1) improperlyshifting onto Claimant the burden to prove the compensable injury was the major contributing cause (MCC) of his disability and need for surgery; (2) finding that the medical services at issue did not constitute "emergency care or services," and that lack of notice to the Employer/Carrier (E/C) precluded authorization or payment; and (3) finding the opinion testimony from the emergency room physician, Dr. Acebal, is not admissible pursuant to the "self-help" provisions contained in chapter 440. We reverse on the first two grounds raised.
We affirm without further comment the JCC's conclusion that opinion testimony from Dr. Acebal is not admissible evidence under the "self-help" provisions contained in chapter 440. But we conclude that Dr. Acebal provided emergency care and services to Claimant, as he was legally compelled to do under section 440.13(3)(b), Florida Statutes. Because the injury requiring emergency care and services was a compensable workplace injury (and here, there is no dispute over the fact that the services were medically necessary), the emergency services and care provided by Dr. Acebal were also "compensable" under section 440.13(3)(b). Thus, Dr. Acebal thereby became eligible to be paid for these services. Based on these conclusions -- established without reliance on Dr. Acebal's medical opinion testimony -- we conclude that Dr. Acebal, by providing compensable care, became an "authorized treating provider" for the purposes of section 440.13(5)(e), Florida Statutes (2005). Thus, we hold thatDr. Acebal's medical opinion testimony was admissible in the proceedings before the JCC.
In light of Dr. Acebal's medical opinion testimony, which was not rebutted or impeached in any significant way, we conclude that the surgery performed by Dr. Acebal was performed to treat an emergency medical condition. Because we conclude that the JCC improperly shifted the burden of proof onto Claimant regarding the MCC of his need for surgical treatment, and further erred by finding the medical services provided by Dr. Acebal did not constitute compensable "emergency care or services" under section 440.13(1)(f), Florida Statutes (2005), we reverse and remand for entry of an order finding the medical services provided by Dr. Acebal compensable and awarding any benefits due as a result of this finding.
On March 20, 2006, Claimant injured his lower back in the course and scope of his employment. The E/C accepted Claimant's accident as compensable, and authorized treatment of his lumbar spine with Dr. Christopher Brown. Claimant declined surgical treatment, and in September 2006, Dr. Brown placed Claimant at maximum medical improvement (MMI) with a compensable 6% permanent impairment rating for the L5-S1 disc herniation.
From 2006 through 2010, Claimant returned to Dr. Brown on severaloccasions due to recurrent low back pain. In December 2010, Claimant agreed to undergo epidural steroid injections, and was referred to Dr. Joel Salamon for pain management and the first injection, which was authorized by the E/C. Dr. Brown saw Claimant twice after his pain management referral, and on those visits Claimant reported significant improvement in his symptoms. Claimant was scheduled for a second injection, but before receiving this second injection, he developed significant back and leg pain and had difficulty standing.
On March 19, 2011, Claimant was admitted to and treated in the emergency room at Kendall Regional Medical Center (KRMC) with a sedative and an injectable pain medication before discharge. Claimant's pain resumed the following day, and he returned to the KRMC emergency room and was admitted under the care of Dr. Pablo Acebal, a neurosurgeon. Dr. Acebal ordered an MRI, which revealed a massive herniated disc at L5-S1 that was severely compressing the nerve roots of the spine. Based on his observation that Claimant was immobilized and in "unbearable pain," Dr. Acebal recommended prompt surgery at L5-S1 to treat the condition.
The same day, Dr. Acebal contacted Dr. Brown and offered to transfer Claimant's surgery to Dr. Brown as a professional courtesy. Dr. Acebal advised Dr. Brown that Claimant needed surgery because he had a "huge disc." According to Dr. Acebal, had Dr. Brown given any indication that he would have operated onClaimant "quite quickly" (meaning the next day), he would have transferred Claimant to Dr. Brown's care. Nevertheless, Dr. Brown advised Dr. Acebal that if Claimant's condition was emergent and required surgery, "he probably shouldn't be transferred." In deposition, Dr. Brown opined that if Claimant could have been transferred, as offered by Dr. Acebal, then the surgery would be "more of an elective type of thing" and "he really doesn't need to be transferred," because Claimant could be treated on an outpatient basis. On March 22, 2011, Dr. Acebal performed surgery on Claimant at L5-S1.
On March 23, 2011, the E/C denied any future medical care based on the adjuster's conversation with the workers' compensation coordinator in Dr. Brown's office. The adjuster was advised that Claimant had informed Dr. Brown's office that "he was in the emergency room, an MRI had been done, and they were going to set him up for emergency surgery." On March 25, 2011, Claimant's wife faxed Claimant's hospital records to the adjuster, but the E/C's adjuster did nothing with these records because the claim was already denied in its entirety.
Thereafter, Claimant filed a petition for benefits seeking, among other benefits, temporary indemnity benefits (as he remained on modified work duty following the surgery), authorization for continued treatment with Dr. Brown, and compensability of the surgery performed by Dr. Acebal. The E/C contested all ofthese claims based on the following defenses: "industrial accident not the MCC of temporary disability; industrial accident no longer the MCC of the current need for treatment as Claimant underwent surgery with an unauthorized physician; such surgery was unauthorized and did not constitute emergency care; carrier not placed on timely notice of alleged emergency care; and surgery not medically necessary or causally related to accident."
At hearing, Claimant attempted to offer into evidence the opinion testimony of Dr. Acebal. The E/C objected, arguing that Dr. Acebal's medical opinion was not admissible under section 440.13(5)(e) because he was not an "authorized physician, independent medical examiner, or expert medical advisor." The JCC sustained the E/C's objection, concluding that Dr. Acebal's medical opinion was inadmissible, and admitted the doctor's deposition for "fact purposes only."
The E/C presented deposition testimony of Dr. Brown that the compensable injury was not the MCC of Claimant's surgery, but Dr. Brown could not determine the MCC, because he was unaware of any other potential causes of Claimant's need for treatment. Dr. Brown further testified that although he did not observe Claimant or his condition at KRMC, Claimant's surgery was not performed on an emergency basis. According to Dr. Brown, an "emergent reason for surgery would be cauda equina syndrome where a patient would either lose control of his bowel or bladder and have a large disc compressing the nerves that control those organs,and in the absence of such signs, there is no need for an immediate surgery." Dr. Salamon, Claimant's pain management physician, testified that back pain is "never" an emergency.
In the order on review, the JCC found that the E/C failed to show a break in the causal chain regarding the compensability of Claimant's compensable back injury. Nevertheless, the JCC found that Claimant failed to prove the compensable injury was the MCC of the need for surgery. The JCC further found that Claimant failed to satisfy his burden to persuade the JCC that Dr. Acebal's "unauthorized" care and services constituted "emergency services and care," or that the E/C received timely notice of the alleged emergency care. Consequently, the JCC denied compensability of the surgery performed by Dr. Acebal and the temporary indemnity benefits associated with the surgery.
Initially, Claimant argues that the JCC relied upon an incorrect legal standard by concluding that Claimant failed to prove his compensable injury was the MCC of the need for emergency treatment and indemnity benefits. Claimant's argument has merit, as the JCC erred by concluding that Claimant failed to sufficiently establish the compensability of the L5-S1 disc herniation, the injury at issue.
To the extent a JCC's order turns on a resolution of the facts, the standard of review is competent, substantial evidence (CSE); to the extent it involved an interpretation of law, the standard is de novo. See Mylock v. Champion Int'l, 906 So. 2d 363, 365 (Fla. 1st DCA 2005). Once compensability of an injury is established, a carrier can no longer contest that the accident is the MCC of the injury. See Engler v. Am. Friends of Hebrew Univ., 180 So. 3d 613, 614 (Fla. 1st DCA 2009) (...
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