Cespedes v. Yellow Transp., Inc.

• Decision Date: 26 November 2013
• Citation: 130 So.3d 243
• Parties: Manuel CESPEDES, Jr., Appellant, v. YELLOW TRANSPORTATION, INC. (URC)/GALLAGHER BASSETT SERVICES, INC., Appellees.
• Court: Florida District Court of Appeals

130 So.3d 243

Manuel CESPEDES, Jr., Appellant,

v.YELLOW TRANSPORTATION, INC. (URC)/GALLAGHER BASSETT SERVICES, INC., Appellees.

District Court of Appeal of Florida,

First District.

Nov. 26, 2013.

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.

ON MOTION FOR REHEARING AND MOTION FOR REHEARING EN BANC

THOMAS, J.

We deny Appellees' Motion for Rehearing and Motion for Rehearing En Banc, withdraw our original opinion dated April 24, 2013, and substitute this opinion in its place.

In this workers' compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) that denies in part his claims for workers' compensation benefits. Claimant argues the JCC erred by (1) improperly shifting 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 services and care” and that lack of notice to the Employer/Carrier (E/C) rendered the surgery non-compensable under chapter 440; 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 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 nevertheless conclude that under the facts and procedural history of this case, the JCC employed incorrect legal standards in conducting the major contributing cause analysis required by section 440.09(1)(a)-(b), Florida Statutes (2005). We further conclude that the JCC also used an incorrect legal test to determine whether the services and care provided by Dr. Acebal were “emergency services and care,” compensable under chapter 440. Because of these errors, and based on our conclusion that the opinion testimony of those physicians who have provided compensable emergency services and care are admissible as “authorized treating provider[s]” under section 440.13(5)(e), Florida Statutes, we also conclude that the JCC used improper legal standards in determining that Dr. Acebal's medical opinions were inadmissible in the proceedings below. Based on these errors, we reverse the order on appeal, and remand for additional proceedings and additional factual findings based on the correct legal standards announced herein and the evidence already offered in the proceedings below.

BACKGROUND

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 offered by Dr. Brown, and in September 2006, Dr. Brown placed Claimant at maximum medical improvement (MMI) with a 6% permanent impairment rating for an L5–S1 disc herniation. This lower back condition was accepted as compensable by the E/C.

From 2006 through 2010, Claimant returned to Dr. Brown on several occasions due to recurrent low back pain; Dr. Brown continued to recommend surgical intervention for the compensable lower back injury, which Claimant declined. In December 2010, Claimant agreed to undergoepidural 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. 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 evaluated Claimant and ordered an MRI, which revealed a massive herniated disc at L5–S1 which 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, as a professional courtesy, offered to transfer Claimant's surgery to Dr. Brown. 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 on Claimant “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 the L5–S1 level. On March 23, 2011, the E/C denied any future medical care and deauthorized Dr. Brown.

Thereafter, Claimant filed a petition for benefits seeking, inter alia, 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 of these 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 workplace accident was not the MCC of Claimant's surgery, and that he could not determine the MCC of the need for the surgery, 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, he concluded 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.” The E/C also presented testimony from Dr. Salamon, Claimant's pain management physician, that back pain is “never” an emergency.

In the order on review, the JCC found that Dr. Brown diagnosed Claimant with a “work related L5–S1 disk herniation and radiculopathy,” and that the “E/C has agreed, and did stipulate” to the compensability of Claimant's low back condition. The JCC also found that there were no identifiable causes for Claimant's low back condition other than the compensable workplace injury and a pre-existing spondylosis (which Dr. Brown opined contributed 10% to Claimant's symptoms). The JCC further found that the E/C failed to show a break in the causal chain regarding the compensability of Claimant's back injury, and the JCC rejected “any medical opinion in evidence” suggesting that Claimant suffered a subsequent injury or accident. Moreover, the JCC found that there was insufficient record evidence to support the E/C's contention that the “accident is no longer the major contributing cause of the need for treatment[.]” The JCC awarded ongoing treatment with Dr. Brown. None of the foregoing findings, each favorable to Claimant and resulting in an award of benefits, have been challenged by the E/C by way of cross-appeal.

Notwithstanding the foregoing factual issues resolved in Claimant's favor, however, 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.” In addition, the JCC found the E/C did not receive 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.

ANALYSIS

The Compensable Injury

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., 18 So.3d 613, 614 (Fla. 1st DCA 2009) (“Once compensability is established, an E/C can no longer contest that the accident is the MCC of the injuries at issue.”); § 440.13(1)(e), Fla. Stat. (2005) (defining “compensable” as “a determination by a carrier or [JCC] that a condition suffered by an employee results from an injury arising out of and in the course of employment.”); § 440.09(1)(a)-(b), Fla. Stat. (2005) (explaining major...