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

CourtCourt of Appeal of Florida (US)
Writing for the CourtWolf
Docket NumberCase No. 1D09-3974.
Decision Date20 April 2010

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JUDY RUSSELL, Appellant,
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.


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

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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:

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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....

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