Robinson v. Shands Teaching Hosp.

• Decision Date: 14 September 1993
• Docket Number: No. 91-2735,91-2735
• Parties: 18 Fla. L. Weekly D2029 Katherine ROBINSON, Appellant, v. SHANDS TEACHING HOSPITAL and Crawford and Company, Appellees.
• Court: Florida District Court of Appeals

Page 21

625 So.2d 21

18 Fla. L. Weekly D2029

Katherine ROBINSON, Appellant, v. SHANDS TEACHING HOSPITAL and Crawford and Company, Appellees.

No. 91-2735.

District Court of Appeal of Florida,

First District.

Sept. 14, 1993.

Rehearing Denied Oct. 14, 1993.

Dorothy Clay Sims, Sims & DiLorenzo, Ocala, Joseph C. Segor, Miami, for appellant.

Kay Kiner James, Shands Teaching Hospital, Gainesville, for appellees.

WEBSTER, Judge.

In this workers' compensation case, claimant seeks review of an order which denied reimbursement for previous treatment, and authorization of future treatment, by a particular psychiatrist. Claimant argues that the relief requested should have been granted because the psychologist authorized by the employer and servicing agent could not provide equivalent treatment. We affirm.

Claimant suffered a work-related injury to her hip in December 1989. The injury was accepted as compensable; and Dr. Lane, an orthopedist, was authorized to treat claimant. Dr. Lane diagnosed claimant's injury as a sprain of the adductor muscle. ¹

On January 31, 1990, Dr. Lane concluded that claimant could return to light-duty work, with restrictions regarding walking, climbing, squatting and heavy lifting. He opined that, after a month, those restrictions would no longer be necessary, and claimant could return to full-duty work.

Dr. Lane next saw claimant on March 15, 1990, at which time claimant complained of continued pain. Although Dr. Lane could identify no objective basis for claimant's continued pain, he opined that she was probably suffering from "a chronic irritation of her adductor group." He recommended continued therapy, weight loss and use of a cane; and advised claimant to return in a month for a follow-up.

The only subsequent visit to Dr. Lane reflected in the record was on August 13, 1990, when claimant again complained of pain. Dr. Lane's notes again reflect a lack of any objective basis for claimant's complaints. Dr. Lane also noted that claimant had misrepresented the frequency of her attendance at therapy, and that this was consistent "with the pattern of manipulating the facts that [he] ha[d] experienced in terms of trying to deal with [claimant]." Finally, his August 13 note reflects that "[claimant] states she has been depressed by the problems associated with her job and her persistent pain. I have referred her to Dr. Springer for treatment of her depression" (emphasis added).

Claimant first saw Dr. Springer, who apparently is a psychiatrist, on August 15, 1990, when she attended a group session. ² On August 20, and again on August 24, the servicing agent told Dr. Springer that he would not be authorized to treat claimant. On August 30, claimant was orally informed that Dr. Springer would not be authorized, but that a psychologist would be authorized. This was followed by a letter of the same date, which referred to the oral communication, and included the following:

We have notes in our file from Dr. Lane, which refers [sic] you to Dr. Springer for psychological counseling. At this time, we are authorizing the following physician [sic]:

Finnette Fabrick, Ph.D.

3655 Southwest Second Avenue

Gainesville, Florida 32607

Telephone Number: (904) 375-0622

By copy of this letter, we are notifying the physician [sic] that they [sic] are authorized to treat you.

Despite having been notified that Dr. Springer would not be authorized, but that Dr. Fabrick would be, claimant continued to see Dr. Springer. As the result of an interview performed on September 7, 1990, Dr. Springer concluded that "[claimant's] personality appears to be best characterized as depressive." He recommended treatment consisting of "group therapy and medication."

On or about September 25, 1990, claimant filed a claim for benefits. Neither the claim for benefits nor the subsequent application for hearing identified reimbursement for past treatment, or authorization of future treatment, by Dr. Springer (or any other psychiatrist or psychologist) as an issue. However, the pre-trial stipulation filed by the parties did identify as an issue whether "claimant [was] entitled to psychiatric care from Dr. Springer."

On October 4, 1990, claimant submitted to an independent medical examination by Dr. Parr, an orthopedic surgeon. As a result of the examination, Dr. Parr (who testified by deposition) concluded that claimant had suffered "a pulled muscle, or simple groin strain"; that claimant had reached maximum medical improvement prior to the time that he examined her; that claimant had no impairment as a result of the accident, and no restrictions; and that claimant was not in need of any additional treatment. He also opined that claimant had "marked functional overlay," and that she was "a classic malingerer."

At the hearing, when asked what issues claimant intended to address, claimant's attorney responded that the only issue to be addressed at that time was whether claimant was entitled to psychiatric care from Dr. Springer. The record reflects nothing in the form of discussion or argument to suggest the legal basis for the claim.

Claimant testified that Dr. Lane had referred her to Dr. Springer during August of 1990, and that she had been seeing Dr. Springer "on a consistent basis since then." Claimant conceded that she had received the August 30, 1990, letter from the servicing agent regarding authorization of Dr. Fabrick. Claimant testified that the sole reason that she continued to see Dr. Springer, rather than going to Dr. Fabrick, was because she "had already started seeing Dr. Springer," and she "felt comfortable" with him. (The record reflects that claimant saw Dr. Springer only once prior to receipt of the August 30, 1990, letter from the servicing agent; she attended a group session on August 15.) Neither claimant nor anyone else suggested that claimant continued to see Dr. Springer, rather than going to Dr. Fabrick, because Dr. Fabrick was a psychologist rather than a psychiatrist; or because Dr. Fabrick, as a psychologist, could not treat claimant for her depression.

In his order, the judge of compensation claims found that no request had been made for authorization of Dr. Springer before claimant began seeing him; treatment was not required on an emergency basis; Dr. Springer was notified that he would not be authorized; and treatment was authorized with Dr. Fabrick as soon as the employer and servicing agent became aware of claimant's need. Accordingly, the judge denied claimant's request. It is from this order that claimant appeals.

On appeal, claimant, represented by new counsel, argues that she was entitled to treatment by Dr. Springer because the treatment offered by the employer and servicing agent in the form of Dr. Fabrick, a psychologist, was not equivalent to that available from Dr. Springer, a psychiatrist. We reject this argument because it was never presented to the judge of compensation claims. There is nothing in the record to suggest that claimant based her claim upon the proposition that she had requested a psychiatrist, whereas the employer and servicing agent offered only a psychologist; or the proposition that claimant required treatment which only a psychiatrist, rather than a psychologist, could provide. Rather, it is clear from the record that the sole basis for claimant's request was that she "had already started seeing Dr. Springer," and "felt comfortable" with him. In workers' compensation appeals, as in appeals generally, issues which have not been raised below are treated as not preserved, and will not be addressed. E.g., Merritt Sea Wall v. Revels, 594 So.2d 855 (Fla. 1st DCA1992); Random House/RCA v. Malone, 553 So.2d 357 (Fla. 1st DCA1989); Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA1982).

Moreover, even had such an issue been presented to the judge of compensation claims, there was not competent substantial evidence from which one could conclude that claimant's position was meritorious. ³ To entitle her to treatment by a psychiatrist, it was incumbent upon claimant to establish that such treatment was "medically necessary." Section 440.13(2)(a), Fla.Stat. (Supp.1990). See generally Kirkland v. Harold Pratt Paving, Inc., 518 So.2d 1320 (Fla. 1st DCA1987) (employer and carrier are responsible for unauthorized care where claimant has requested that specific type of treatment, and it appears that such treatment is medically necessary), review denied, 525 So.2d 878 (Fla.1988); Gust K. Newberg Construction Co. v. Warren, 449 So.2d 934 (Fla. 1st DCA1984) (when claimant challenges, as not equivalent, offer of orthopedist in response to request for chiropractor, judge must determine whether latter was medically necessary). Here, no evidence was presented which would remotely suggest that treatment of claimant's depression by a psychiatrist, as opposed to a psychologist, was medically necessary. The only evidence offered was Dr. Lane's note that "[claimant] states she has been depressed by the problems associated with her job and her persistent pain. I have referred her to Dr. Springer for treatment of her depression." Neither Dr. Lane, Dr. Springer nor anyone else suggested that claimant's depression could be treated only by a psychiatrist.

The issue sought to be raised on appeal was not raised below and, therefore, has not been preserved for review. Accordingly, we affirm.

AFFIRMED.

JOANOS, J., concurs.

ZEHMER, C.J., dissents with written opinion.

ZEHMER, Chief Judge (dissenting).

The issue on appeal is whether the employer and carrier are required to pay for Dr. Springer's psychiatric services to Claimant because the employer and carrier failed to comply with the requirements of section 440.13, Florida Statutes (Supp.1990). Because the carrier declined the request to authorize Dr. Springer to provide psychiatric care to Claimant and, in response, offered treatment by a psychologist, Dr. Fabrick, Ph.D., I respectfully dissent from the majority's...