Palm Springs General Hosp. v. Cabrera, 96-2602

• Decision Date: 16 September 1997
• Docket Number: No. 96-2602,96-2602
• Citation: 698 So.2d 1352
• Parties: 22 Fla. L. Weekly D2228 PALM SPRINGS GENERAL HOSPITAL and Florida Retail Federation SIF, Appellants, v. Eduardo CABRERA, Appellee.
• Court: Florida District Court of Appeals

Page 1352

698 So.2d 1352

22 Fla. L. Weekly D2228

PALM SPRINGS GENERAL HOSPITAL and Florida Retail Federation SIF, Appellants, v. Eduardo CABRERA, Appellee.

No. 96-2602.

District Court of Appeal of Florida First District.

Sept. 16, 1997.

H. George Kagan and Elliot B. Kula of Miller, Kagan, Rodriguez & Silver, P.A., West Palm Beach, for Appellants.

Barry A. Pemsler, Miami, and Jay M. Levy of Jay M. Levy, P.A., Miami, for Appellee.

BENTON, Judge.

On this appeal from the final order that awarded permanent total disability benefits to Eduardo Cabrera, his employer and its workers' compensation servicing agent ask us to overturn both the award and the denial of their request that he be evaluated by an expert medical advisor. Concluding that the judge of compensation claims had a statutory duty to order evaluation by an expert medical advisor before ruling on the merits of the petition for benefits, we reverse the final order and remand for the designation of an expert medical advisor, as contemplated by section 440.13(9)(c), Florida Statutes (1995), and Florida Administrative Code Rule 38F-54.005, and for such further proceedings before a judge of compensation claims as may be required.

While working for Palm Springs General Hospital as a carpenter, Mr. Cabrera fell from a ladder in January of 1994. As a result, he fractured some ribs, injured his spine and his right hand, and sustained multiple contusions. The hospital (as his employer) authorized treatment for these injuries. It also authorized psychiatric evaluation and treatment, when that was recommended in May of 1994.

In a petition for benefits, Mr. Cabrera asserted that the accident left him permanently, totally disabled. Before the hearing on the merits, it became clear that none of his treating physicians was of the opinion that physical limitations rendered him incapable of working. His psychiatric condition had become the only basis on which he might qualify for permanent total disability benefits when, a week before the final hearing began, his employer filed a motion for appointment of an expert medical (psychiatric) advisor, on the authority of section 440.13(9)(c), Florida Statutes (1995).

Timely Filing

The employer and its servicing agent filed and served (by facsimile transmission) the motion for appointment of an expert medical advisor on October 3, 1995. It alleged that the mental health care providers treating Mr. Cabrera disagreed about the nature and etiology of his psychiatric condition. The motion also alleged that differences in the opinions of Dr. Castiello and Dr. Rodriguez had only recently come to light: At the time the motion was made, Dr. Gonzalez had not yet stated that he believed the accident at work was the cause of claimant's psychological condition, but Dr. Rodriguez had testified on deposition, taken at claimant's instance on September 14, 1995, to the effect that the industrial accident alone caused Mr. Cabrera's psychological difficulties. Earlier having implicated a preexisting condition, Dr. Castiello first attributed two-thirds of Mr. Cabrera's impairment to a preexisting personality disorder in a letter dated September 28, 1995.

The judge of compensation claims reserved ruling on the original motion for appointment of expert medical advisor until after taking evidence at the merits hearing. ¹ Portions of the merits hearing took place on October 10, 1995, November 29, 1995, December 11, 1995, February 12, 1996, February 16, 1996, and March 29, 1996. The last medical evidence was adduced on February 12, 1996. Once all the medical evidence had been put on, the employer renewed its motion to appoint an expert medical advisor. On February 16, 1996, some four and a half months after the original motion was filed, the judge of compensation claims entertained further argument regarding evaluation by an expert medical advisor. Another three and a half months passed without a ruling on the motion for appointment of an expert medical advisor.

Yet the judge of compensation claims found that the motion was untimely. On the one hand, the judge of compensation claims originally deferred acting on the motion, apparently to determine whether, once all the medical evidence had been adduced at hearing, a true conflict existed, while, on the other hand (as an afterthought), he ruled the motion untimely, implying that the conflict in medical opinion should have been discovered earlier. No prehearing order had set discovery deadlines. The disagreement between health care providers only became apparent shortly before the original motion was filed. The final order failed to mention these crucial facts, in reporting that Mr. Cabrera's psychiatric "condition had been at issue and had been highly visible for some time, at least a year and a half, before the filing of this motion."

We reject the proposition that a party who has complied fully with all pretrial orders should nevertheless be foreclosed from requesting evaluation by an expert medical advisor, if the request is made with reasonable promptness once a conflict in the health care providers' opinions surfaces. Here, if an expert medical advisor had been appointed when requested on October 3, 1995, there is little reason to believe that the final order, entered on June 5, 1996, would have been (further) delayed. There is, indeed, the possibility that an expert medical advisor's assessment--which carries with it a (rebuttable) statutory presumption of correctness--would have led to an earlier, agreed resolution.

The concern for timeliness the final order manifests is unquestionably legitimate. It is for the judge of compensation claims--not for the parties--to set hearings, to continue them, if need be, and generally to control the docket. To the extent section 440.13(9)(c), Florida Statutes (1995), permits a party to insist in effect on a continuance--even after an evidentiary hearing on the merits has begun--it carries with it possibilities for unwarranted disruption and delay. ²

While the statute contains no provisions governing the timeliness of requests for appointment of expert medical advisors, the absence of statutory deadlines does not authorize unreasonable delays in requests for evaluation by expert medical advisors once material disagreement in the opinions of health care providers comes to a party's attention. Cf. Farm Stores, Inc. v. Fletcher, 621 So.2d 706, 708 (Fla. 1st DCA 1993)(holding employer lost statutory right to independent examination where it "waited more than a year to attempt to schedule the independent dental examination").

On the other hand, sections 440.13(9)(c) and 440.25(4)(d), Florida Statutes (1995), contemplate resort to an expert medical advisor, even if disagreement between medical providers becomes apparent only after the merits hearing has begun.

At such hearing, the claimant and employer may each present evidence in respect of such claim.... When there is a conflict in the medical evidence submitted at the hearing, the provisions of s. 440.13 shall apply. The report or testimony of the expert medical advisor shall be made a part of the record of the proceeding.

§ 440.25(4)(d), Fla. Stat. (1995). The statute imposes a duty not only on the parties, but also on the judge of compensation claims, who "shall, upon his own motion" appoint an expert medical advisor, in the event of a material disagreement between health care providers. ³

Setting a pretrial hearing and ordering expedited discovery, if necessary, can attenuate any threat to orderly proceedings. On seven days' notice, a pretrial conference can be scheduled, at which the parties may be willing to stipulate either to the appointment of an expert medical advisor or to forgo the appointment. Fla. R. Work. Comp. P. 4.045. Even without a party's requesting it, the judge of compensation claims "shall" appoint an expert medical advisor, if the requisite disagreement in the opinions of health care providers is apparent at the time of the pretrial hearing. § 440.13(9)(c), Fla. Stat. (1995).

If the matter is not resolved at the pretrial hearing, the judge of compensation claims can order discovery cut-off dates, require that medical witnesses be listed early on, require that depositions be taken promptly after medical witnesses are identified, require the exchange of medical records and reports on an immediate and ongoing basis, and otherwise "hold the parties' feet to the fire" by requiring prompt pursuit of any discovery designed to reveal conflict in the medical evidence. Fla. R. Work. Comp. P. 4.045(m) and 4.055.

Material Disagreement

The final order denied the employer's motion for appointment of an expert medical advisor, characterizing section 440.13(9)(c) Florida Statutes (1995), as "directive...