Commercial Carriers, Inc. v. Porter, AG-413

• Decision Date: 29 December 1982
• Docket Number: No. AG-413,AG-413
• Parties: COMMERCIAL CARRIERS, INC., Self-Insured, Appellants, v. Elliott L. PORTER, Appellee.
• Court: Florida District Court of Appeals

Page 155

424 So.2d 155

COMMERCIAL CARRIERS, INC., Self-Insured, Appellants, v. Elliott L. PORTER, Appellee.

No. AG-413.

District Court of Appeal of Florida,

First District.

Dec. 29, 1982.

Bernard J. Zimmerman, William G. Berzak and Michael M. O'Brien of Akerman, Senterfitt & Eidson, Orlando, for appellants.

Peter S. Schwedock of Pelzner, Schwedock, Finkelstein & Klausner, Miami, for appellee.

JOANOS, Judge.

In this workers' compensation appeal the employer (self-insured) contests the deputy commissioner's order insofar as it ordered employer to pay for unauthorized non-emergency medical treatment and the accompanying hospitalization at American Hospital on the basis that it was reasonable and necessary; ordered employer to pay the bill of Baptist Hospital which employer asserts had been paid for over a year prior to the order; awarded $6,302.00 to Olga Porter for nursing services; and ordered employer to pay claimant's attorney a fee of $44,000. (The accident occurred on September 25, 1976.) We reverse as to all of these issues, except as to the Baptist Hospital bill, with regard to which we amend the order to provide for payment of that bill only if it has not been paid previously.

The award of payment for unauthorized medical treatment is reversed on the authority of City of Fort Lauderdale v. Flanders, 416 So.2d 1234 (Fla. 1st DCA 1982). In the present case, Dr. Rivet, who performed certain unusual operations called cingulotomies for relief of claimant's severe pain, was informed prior to rendering this treatment that it was unauthorized. In addition, claimant's authorized treating physician, Dr. Dooley, recommended against the surgery. Although it is not asserted that the surgery was performed under emergency conditions, prior authorization was not sought before the deputy commissioner. There is evidence that the operations were successful in relieving claimant's pain, and although he died shortly afterwards there is no suggestion by the treating physician that the operations contributed to his death. In the order, the deputy concluded that there had been no showing of prejudice to the employer, and no showing that the employer ever offered claimant an alternative to Dr. Rivet's care and that, in fact, the testimony showed that the surgical procedure performed by Dr. Rivet "is so unique that he is one of the very few people in the United States qualified to undertake that procedure." The determinative finding, that employer failed to offer claimant alternative care, is not supported by competent substantial evidence in the record. Employer was providing treatment by Dr. Dooley. Even though Dr. Rivet offered highly specialized treatment, the treating physician was consulted and recommended against the procedure. This does not constitute failure to provide alternative treatment. See Mt. Sinai Medical Center v. Lack, 381 So.2d 304 (Fla. 1st DCA 1980). Under the non-emergency circumstances of this case, prior authorization should have been sought before the deputy commissioner. The award of payment of the bill of American Hospital incurred pursuant to the unauthorized surgery is also reversed. Id.

In the deputy's order dated August 31, 1979, which was earlier appealed to this court and affirmed without opinion, he ordered employer to pay Olga Porter $50 per day for attendant care services and provide care by another aide for one eight hour shift per day except during periods of hospitalization. In the order presently on appeal, the deputy ordered employer to pay Mrs. Porter an additional $46 per day because "the employer did not provide 24 hour care for 137 days and as a result Mrs. Porter handled that shift herself." Appellant asserts that this latter award is precluded by the principle of res judicata because it relates to attendant care the claim for which was resolved by the order of August 31, 1979. Appellee's response to this argument is: "If in fact the deputy ordered duplication of payments, he erred, and that part should be stricken. However, based on this record we submit that such is not the case and therefore this point should be affirmed." Appellee misinterprets appellant's argument, which is not based on duplication of benefits, and in addition has made no attempt to direct our attention to competent substantial evidence in the record to support the award. We have reviewed the record, which incorporates the previous record on appeal, and since it appears the award of additional payment was for a period of time addressed in the 1979 order, we conclude that appellant is correct. In effect, the deputy has modified the previous order on attendant care without proper justification. See Hodges v. State Road Department, 171 So.2d 523 (Fla.1965); Southern Bell Telephone and Telegraph Co. v. Blackstock, 419 So.2d 360 (Fla. 1st DCA 1982); and Green Thumb Corp. v. Britten, 393 So.2d 613 (Fla. 1st DCA 1981). The award of additional payment to Mrs. Porter for attendant care services is reversed.

Finally, appellant contends the award of $44,000 in attorney's fees is excessive and constitutes an abuse of discretion. Part of the award ($36,500) was based on services relating to the first compensation order of August 31, 1979. In making this award, the deputy found that claimant's counsel "was responsible for procuring approximately $90,000 in benefits on behalf of Mr. Porter" without considering benefits which were voluntarily provided. We have been unable to locate competent substantial evidence in the record to support the finding that $90,000 in benefits were procured by claimant's counsel under the terms of that first order. The second part of the award ($7,500) was for obtaining the award for Dr. Rivet's unauthorized surgery, the accompanying bill of American Hospital, and the bill of Baptist Hospital. Inasmuch as we have reversed or modified...