Miller Elec. Co. v. Oursler

• Decision Date: 31 May 2013
• Docket Number: No. 1D12–2385.,1D12–2385.
• Citation: 113 So.3d 1004
• Parties: MILLER ELECTRIC COMPANY and Commercial Risk Management, Appellants, v. Eric OURSLER, Appellee.
• Court: Florida District Court of Appeals

113 So.3d 1004

MILLER ELECTRIC COMPANY and Commercial Risk Management, Appellants,

v.Eric OURSLER, Appellee.

No. 1D12–2385.

District Court of Appeal of Florida, First District.

April 22, 2013.

Rehearing Denied May 31, 2013.

Mark K. Eckels and Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, for Appellants.

Lawrence M. Malman, Coral Gables, and Jay M. Levy of Jay M. Levy, P.A., Miami, for Appellee.

PER CURIAM.

In this workers' compensation case, the Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) awarding palliative care to Claimant in reliance on the opinions of expert medical advisor (EMA) Dr. Lang, and striking the E/C's affirmative defense of fraud. For the reasons set forth herein, we REVERSE these rulings as premature. The facts are as follows.

Factual Background

In December 2000, Claimant injured his back at work, and the E/C accepted the injury as compensable. The E/C authorized Dr. Ibars, who placed Claimant at maximum medical improvement (MMI) in 2001, provided palliative care in 2002, and referred Claimant to pain management in 2003. The E/C then authorized Dr. DeMeo, who provided palliative care until August 2010, when, apparently having been shown surveillance video of Claimant obtained by the E/C, Dr. DeMeo opined the compensable injury is no longer the major contributing cause (MCC) of any need for treatment. Based on Dr. DeMeo's opinion, the E/C denied further medical treatment. Claimant filed petitions for benefits (PFBs) seeking further treatment with Drs. Ibars or DeMeo, but the E/C contested the PFBs (presumably again based on Dr. DeMeo's opinion).

On April 27, 2011, Claimant went to an unauthorized doctor, Dr. Mouhanna. Dr. Mouhanna prescribed medication and recommended further studies and treatment. In July 2011, a hearing was held at which Claimant then attempted to introduce into evidence, in support of his PFBs, a medical opinion from Dr. Mouhanna that the work injury is the MCC of Claimant's need for treatment. The JCC ruled (and the ruling is not challenged) that Dr. Mouhanna was not an independent medical examiner (IME) in this case. The JCC reserved ruling, however, as to whether Dr. Mouhanna could be deemed authorized as having provided emergency treatment.

Despite having reserved ruling on the admissibility of Dr. Mouhanna's medical opinions, the JCC sua sponte appointed an expert medical advisor (EMA) to resolve, as he wrote in the order appointing the EMA, “the conflicting opinions between Dr. Mouhanna (if found to be admissible)[,] Dr. Ibars, [and] Dr. Demeo.” The EMA appointed at that time was later disqualified, and replaced with a second doctor to serve as EMA. The subsequent EMA's opinion was that the work injury is the MCC of Claimant's continuing need for care. The E/C asserted, however, that Claimant had misrepresented his medical history to that EMA, and by doing so had forfeited all workers' compensation benefits, as stated in sections 440.09(4) and 440.105(4)(b) 1., Florida Statutes. In the final order of April 2012, the JCC found Dr. Mouhanna “provided treatment on ‘an emergent basis,’ ” accepted the EMA's opinion on MCC, and struck the E/C's fraud defense as untimely.

Legal Analysis

Regarding the fraud defense, there is no specific time period in which a fraud defense must be asserted, because “a party is not required to anticipate false testimony from the opposing party, and is, therefore, not required to discover evidence which would refute false testimony.” Oakdell, Inc. v. Gallardo, 505 So.2d 672, 675 (Fla. 1st DCA 1987), quoted in E. Airlines v. Griffin, 654 So.2d 1194, 1200 (Fla. 1st DCA 1995) (Ervin, J., concurring and dissenting). The proper inquiry for the JCC is whether the E/C's assertion of the fraud defense violated Claimant's right to due process. See Isaac v. Green Iguana, Inc., 871 So.2d 1004 (Fla. 1st DCA 2004) (holding failure to assert fraud defense pretrial violates other party's right to due process). Although timeliness may play into due process considerations, here the JCC rejected the fraud defense as “untimely” without any indication, in either the order or the record, that he had considered due process. This was error. Such error was not harmless because even though—as will be discussed infra—no EMA should have been appointed (and thus Claimant should never have seen the subsequent EMA), Claimant could nonetheless be barred from receiving benefits if he is found to have made false statements for the purpose of obtaining workers' compensation benefits (the reversal of the JCC's error in appointing an EMA does not erase the fact of what took place at the evaluation, or otherwise estop the E/C from asserting a fraud defense; there was no “entrapment” forcing Claimant to make fraudulent statements). On remand, the JCC is permitted to receive evidence on, and rule on, the due process component—and the merits, if the JCC reaches them—of the fraud defense.

Regarding the disqualification of the first EMA, we affirm without further comment. Regarding the JCC's appointment of an EMA before having received into evidence the medical opinion of Dr. Mouhanna—the opinion that created the conflict necessitating resolution by EMA—was undoubtedly premature, but the prematurity of that contingent appointment was cured by his ultimate ruling that Dr. Mouhanna's medical opinion was admissible, a ruling evidenced by the April 2012 order. Notwithstanding that cure, there is reversible error at the trunk of the EMA tree—the JCC erred in admitting Dr. Mouhanna's medical opinion on this record, over the intent of the Legislature set forth in section 440.13(5)(e), Florida Statutes—and, thus, on remand the EMA's medical opinion on MCC should be excluded, and the JCC should not rely on it.

Regarding the admissibility of Dr. Mouhanna's medical opinion, there is reversible error. Section 440.13(5)(e) states that the only admissible medical opinion evidence in workers' compensation cases is that from an authorized treating provider, an IME, or an EMA. Because some medical care from unauthorized providers can later be determined to be covered by workers' compensation by operation of law, such as that care given in emergency situations or in a period during which an E/C wrongfully denies medical care, such providers' medical opinions can become admissible as a matter of law. To demonstrate that the care at issue is or was authorized as a matter of law, however, claimants must first convince the JCC, via admissible evidence, of certain prerequisite facts, set forth in section 440.13(2)(c), Florida Statutes. See Parodi v. Florida Contracting Co., Inc., 16 So.3d 958 (Fla. 1st DCA 2009). These facts are akin to elements of proof, and as such the law is substantive; accordingly, the facts required of each claimant are those set forth in the statute in effect on that claimant's date of accident. See generally Butler...