Sibley v. Big D Lanes, BS-216
| Decision Date | 29 September 1988 |
| Docket Number | No. BS-216,BS-216 |
| Citation | 531 So.2d 424,13 Fla. L. Weekly 2239 |
| Parties | 13 Fla. L. Weekly 2239 Larry E. SIBLEY, II, Appellant, v. BIG D LANES and Cigna Insurance Company, Appellees. |
| Court | Florida District Court of Appeals |
J.W. Chalkley, III of Chalkley and Sims, Ocala, for appellant.
Ralph J. McMurphy of Green and Simmons, Ocala, for appellees.
The claimant contends that the deputy commissioner erred in denying reimbursement for psychiatric treatment which he received without prior approval by the employer/carrier or the deputy commissioner. We affirm.
Relying on the unchallenged opinion of Dr. Rogers, the treating orthopedist, that the claimant did not need psychiatric evaluation or treatment, the deputy commissioner concluded that the unauthorized treatment was neither reasonable nor necessary. The claimant did not question Dr. Rogers' competence to render the psychiatric opinion in the hearing before the deputy commissioner. Neither did he raise the question of Dr Rogers' competence as an expert witness in psychiatry in his initial brief on appeal. It was only in the reply brief that the claimant suggested that Norrell Corp. v. Carle, 509 So.2d 1377 (Fla. 1st DCA 1987), precluded the deputy commissioner from relying on Dr. Rogers' opinion testimony with respect to the claimant's need for psychiatric evaluation or treatment.
This physician may or may not have been qualified to render a psychiatric opinion. However, the question not having been presented to the deputy commissioner, it is too late to raise the competence of a witness for the first time before this court, especially in a reply brief. Carillon Hotel v. Rodriguez, 124 So.2d 3 (Fla.1960); Mariani v. Schleman, 94 So.2d 829 (Fla.1957).
The deputy commissioner's order is AFFIRMED.
BOOTH, J., dissents, with written opinion.
The competent, substantial evidence of record supports the benefits sought; there is no substantial evidence to the contrary. We should, therefore, reverse the deputy's order insofar as it denies reimbursement for Dr. Byrd's services.
Claimant produced the testimony of Dr. Byrd, a medical doctor specializing in psychiatry, who saw claimant on April 23, 1986, and on six occasions thereafter. This doctor evaluated and treated claimant for adjustment disorder and depression related to his painful crush injury to his arm and the lack of improvement in his condition. This doctor testified at the hearing that claimant's condition was related to the industrial accident of February 3, 1985, which occurred when a pin setting machine in a bowling alley where claimant was employed, grabbed his arm and drew it into the machine through a 1/8-inch opening. Dr. Byrd described the treatment given during the period at issue and the fact that statements and reports were submitted to the employer/carrier (E/C). The E/C refused to authorize Dr. Byrd because the treating orthopedist, Dr. Rogers, reported that no evaluation or treatment was required.
Dr. Byrd was the only expert in the psychiatric field to testify, the only witness to treat claimant for his psychiatric condition during the period in question, and the only expert to testify live at the hearing. The deputy does not expressly reject this testimony but chooses to rely on the evidence of Dr. Rogers. Dr. Rogers' evidence consists of three "check marks" on a form furnished by the E/C dated April 21, 1986. These checks mark the "no" line beside the three printed "yes or no" questions on need for psychiatric evaluation or treatment and causation by the industrial accident. 1
The E/C also entered the depositions of surgeons Drs. Dell and Ramadan. The testimony of these experts, however, was supportive of claimant. Both testified to an earlier need for psychiatric evaluation and/or treatment. 2
Dr. Dell, an orthopedic surgeon who had...
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