Russell v. Orange County Public Schools Transportation, Case No. 1D09-3974 (Fla. App. 4/20/2010)

• Decision Date: 20 April 2010
• Docket Number: Case No. 1D09-3974.
• Parties: JUDY RUSSELL, Appellant, v. ORANGE COUNTY PUBLIC SCHOOLS TRANSPORTATION and UNITED SELF-INSURED, Appellees.
• Court: Florida District Court of Appeals

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JUDY RUSSELL, Appellant, v. ORANGE COUNTY PUBLIC SCHOOLS TRANSPORTATION and UNITED SELF-INSURED, Appellees.

Case No. 1D09-3974.

District Court of Appeal of Florida, First District.

Opinion filed April 20, 2010.

An appeal from an order of the Judge of Compensation Claims, W. James Condry, II, Judge.

Date of Accident: September 29, 1998.

Bill McCabe, Longwood, and Thomas A. Vaughan and Carrie L. Hixson, Orlando, for Appellant.

Nancy A. Blastic of Moore, Peterson & Zeitler, P.A., Orlando, for Appellees.

WOLF, J.

Claimant seeks review of an order denying her requested workers' compensation benefits. While claimant raises several issues, only two merit discussion. Specifically, we reverse because we find the Judge of Compensation Claims (JCC) erred in excluding the medical opinion of an orthopedic physician, Dr. Richard Smith, who was at one time claimant's authorized provider. Further, as a result of this erroneous exclusion, we likewise find the JCC erred in declining to order an expert medical advisor's opinion (EMA) based on the disagreement of two admissible medical opinions as required by section 440.13(9)(c), Florida Statutes (Supp. 1998).

Prior to the benefits hearing, claimant requested an EMA, citing a disagreement in the opinions of two orthopedic providers, Dr. Smith and Dr. Jeffrey Rosen. Specifically, Dr. Rosen, claimants' later authorized orthopedic provider, opined in his deposition that claimant's accident was not a major contributing cause of her current knee condition. To the contrary, Dr. Smith, during his deposition, testified he believed the industrial accident was a "greater cause" for claimant's "need for ongoing treatment" than any other cause. The JCC denied the request for an EMA, finding "the foundational support for the conflict did not exist because the opinion that reportedly established the conflict came from a physician whose opinions could not be accepted pursuant to section 440.13(5)(e)."

Section 440.13(5)(e), Florida Statutes (Supp. 1998), governs medical opinion testimony in workers' compensation proceedings and provides in pertinent part No medical opinion other than the opinion of a medical advisor appointed by the [JCC] or division, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the [JCC].

(Emphasis added.)

"The law is clear that a JCC errs in admitting the opinion testimony of a physician who does not fall into one of these categories." Seminole County Sch. Bd. v. Tweedie, 922 So. 2d 1011, 1012 (Fla. 1st DCA 2006). Further, although not defined in chapter 440, an "authorized treating provider," as the term is used in section 440.13(5)(e), Florida Statutes, means "a treating provider authorized by the E/SA." Rucker v. City of Ocala, 684 So. 2d 836, 840 (Fla. 1st DCA 1996); see also Tweedie, 922 So. 2d at 1012 (holding "authorized treating provider" means "provider who has been authorized by an E/SA"). However, the question of whether a currently de-authorized provider who was, at one time, an authorized provider may qualify to provide testimony pursuant to section 440.13(5)(e) is a question of first impression before this court.

A plain reading of the statute does not offer guidance. Specifically, the statute's language provides only authorized physicians, independent medical examiners (IMEs), and EMAs may testify in workers' compensation proceedings; however, the statute does not use the term "currently authorized treating provider" or otherwise suggest the authorization of the provider must be in existence at the time of the benefits hearing. Thus, because the statute is ambiguous on its face this court must look to legislative intent. Murray v. Mariner Health, 994 So. 2d 1051 (Fla. 2008) (holding when a statute is unclear or ambiguous on its face, the court must next determine legislative intent) (citing Starr Tyme, Inc. v. Cohen, 659 So. 2d 1064 (Fla. 1995)).

Section 440.13 was amended in 1993 to include subsection (5)(e), limiting medical opinion testimony to only EMAs, providers, and IMEs. See Ch. 93-415, § 17, Laws of Fla. The Governor's reform proposal of 1993 outlined the general goals of these amendments and included one of those goals as limiting a perceived "doctor-shopping" problem. The Governor's Worker's Compensation Reform Proposal on Fla. S. Bill 12C, § 17 (1993), A Summary (Oct. 21, 1993). Further, section 440.015, Florida Statutes, which provides the legislative intent for the passing of Chapter 440, was likewise amended in 1993 to include the following pertinent language:

. . . . It is the intent of the Legislature to ensure the prompt delivery of benefits to the injured worker. Therefore, an efficient and self-executing system must be created which is not an economic or administrative burden. The Division of Workers' Compensation shall administer the Workers' Compensation Law in a manner which facilitates the self-execution of the system and the process of ensuring a prompt and cost-effective delivery of payments.

See Ch. 93-415, Laws of Fla.

We find that interpreting section 440.13(5)(e) to preclude the admission of a de-authorized physician's medical opinion would contravene the purposes of both section 440.13(5)(e) and chapter 440. Specifically, this interpretation would enable an employer/servicing agency (E/SA) simply to de-authorize a physician at any time it does not want the opinion of that particular physician in evidence. Likewise, a claimant could preclude the admission of a physician's...