Soriano v. Gold Coast Aerial Lift, Inc., 97-374

• Decision Date: 21 January 1998
• Docket Number: No. 97-374,97-374
• Citation: 705 So.2d 636
• Parties: 23 Fla. L. Weekly D304 Walter SORIANO, Appellant, v. GOLD COAST AERIAL LIFT, INC., and Riscorp, Appellees.
• Court: Florida District Court of Appeals

Page 636

705 So.2d 636

23 Fla. L. Weekly D304

Walter SORIANO, Appellant, v. GOLD COAST AERIAL LIFT, INC., and Riscorp, Appellees.

No. 97-374.

District Court of Appeal of Florida First District.

Jan. 21, 1998.

Rehearing Denied Feb. 19, 1998.

Mark N. Tipton, Ocala, for Appellant.

Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, Orlando, for Appellees.

ERVIN, Judge.

This is an appeal of an order of the judge of compensation claims (JCC) denying a motion for attorney's fees filed by claimant, Walter Soriano. We affirm the JCC's denial of fees as it pertained to obtaining authorization of an orthopedic surgeon, because there was competent, substantial evidence (CSE) that Soriano's employer, Gold Coast Aerial Lift, Inc., and its carrier, Riscorp, Inc. (collectively, the E/C), satisfied the obligation to provide this benefit to the claimant. We reverse, however, the JCC's denial of fees in regard to obtaining authorization of a neurosurgical evaluation, because, contrary to the JCC's opinion, Soriano's request for such authorization was ripe at the time he filed his petition for benefits.

Soriano sustained an industrial injury on June 6, 1995, when he injured his low back while operating a crane for the employer. Dr. Medero, an occupational medicine specialist, diagnosed mild sciatica, prescribed medication and bed rest, and ordered an MRI, which showed a bulging disc at L4/S5 with nerve root encroachment. Dr. Medero recommended physical therapy and epidural injections, but the therapy did not help and Soriano refused the injections because of a fear of needles. Dr. Medero referred him to Dr. Rubin, a neurologist, for EMG and nerve conduction studies, and the E/C authorized such treatment. The EMG revealed denervation in the right leg, and in his report dated July 20, 1995, Dr. Rubin recommended epidural injections to relieve pain, but "[i]f this is not feasible because of his resistance or if the symptoms worsened, neurosurgical consultation should then be strongly considered." Dr. Medero, on the other hand, believed that Soriano reached maximum medical improvement in September 1995, and that he was not a surgical candidate, thus consultation with a neurosurgeon was not necessary.

Soriano sought authorization of a neurosurgeon for evaluation and treatment, and filed a petition for such benefit, which the E/C denied, stating no evidence was adduced that a neurosurgeon was needed. Soriano also sought authorization for treatment by an orthopedic surgeon. The E/C responded by offering four orthopedists. Claimant testified that he agreed to consult Dr. Shaw, one of the four, but the record contains a response from his attorney declining to visit any of the four and asking instead for treatment by a different physician. Soriano thereafter filed a petition for benefits seeking authorization of an orthopedic surgeon, which the E/C denied, replying that Soriano had refused the services of four offered orthopedists.

A court-ordered mediation conference was held December 21, 1995, whereupon the parties agreed, among other things, that the E/C would authorize a neurosurgical evaluation with Dr. Berry Kaplan to explore the need for surgery, and would authorize Dr. Oregon Hunter, a physiatrist, to serve as Soriano's principal treating physician instead of Dr. Medero.

Subsequently, Soriano sought attorney's fees under section 440.34(3)(b), Florida Statutes (1995), ¹ which the JCC denied. Because Dr. Medero had testified that a neurosurgical consultation was not medically necessary, the JCC concluded that claimant's petition...