38 Fla. L. Weekly D2525a
services and care — Major contributing cause — Evidence — Medical opinion —
Authorized treating physician — Emergency provider — Where it was established
that there were two contributing causes of claimant’s lower back injury that
required medical treatment, including compensable accident and preexisting
spondylosis, JCC should have weighed relative contributing forces of these two
contributing causes in determining MCC of claimant’s need for lower back surgery
at issue in instant case — Remand for proper analysis — Judge of compensation
claims used incorrect legal standard to determine whether services and care
provided by emergency room physician were “emergency services and care”
compensable under chapter 440 — Relevant questions regarding whether emergency
services and care were provided by physician in this case was whether provider
was a licensed physician, whether evaluation, screening, or examination was
conducted by that physician, and whether care was undertaken by the physician
with the intent of determining “if an emergency medical condition exists” —
Remand for JCC to determine whether physician provided any services and care
that would qualify as “emergency services and care” as defined under relevant
statutory provisions — Compensability of emergency care under chapter 440 and
providing physician’s eligibility for payment for such care is dependent on
additional elements in Workers’ Compensation Law — Care must be medically
necessary, and injury requiring emergency care must have arisen as result of
workplace accident — General rule that physicians providing compensable care
under chapter 440 must receive express authorization from the carrier to be
eligible for payment for treatment provided to injured worker does not apply to
emergency care physicians — Where admissible medical and lay testimony
establishes that physician has provided compensable emergency medical services,
that physician’s medical opinion testimony is admissible as an “authorized
treating provider” — Surgery — JCC applied incorrect legal standard in
determining that surgery at issue in instant case did not qualify as compensable
emergency services and care under chapter 440 — Pain may serve as basis of an
emergency medical condition if in the absence of immediate medical attention the
claimant could reasonably be expected to suffer “serious impairment to bodily
functions” or “serious dysfunction of any bodily organ or part” — Remand for
reconsideration based on proper legal standards — JCC erred in ruling that
emergency surgery was not compensable because emergency provider failed to give
e/c timely notice of emergency treatment — Statutory language does not indicate
that Legislature intended that emergency health care provider’s failure to
comply with notice provisions contained in statute renders claimant responsible
for the payment of emergency medical treatment — On remand, should JCC
determine that surgery was medically necessary and was provided on emergency
basis for compensable injury, JCC shall not decide any potential reimbursement
dispute between e/c and provider, as Department of Financial Services has
exclusive jurisdiction over such disputes
GALLAGHER BASSETT SERVICES, INC., Appellees. 1st District. Case No. 1D12-0677.
Opinion filed November 26, 2013. An appeal from an order of the Judge of
Compensation Claims. Thomas G. Portuallo, Judge. Date of Accident: March 20,
2006. Counsel: Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for
Appellant. William H. Rogner and Scott B. Miller of Hurley, Rogner, Miller, Cox,
Waranch & Westcott, P.A., Winter Park, for Appellees.
ON MOTION FOR REHEARING
AND MOTION FOR REHEARING EN BANC
En Banc, withdraw our original opinion dated April 24, 2013, and substitute this
opinion in its place.
Judge of Compensation Claims (JCC) that denies in part his claims for workers’
compensation benefits. Claimant argues the JCC erred by (1) improperly shifting
onto Claimant the burden to prove the compensable injury was the major
contributing cause (MCC) of his disability and need for surgery; (2) finding
that the medical services at issue did not constitute “emergency services and
care” and that lack of notice to the Employer/Carrier (E/C) rendered the surgery
non-compensable under chapter 440; and (3) finding the opinion testimony from
the emergency room physician, Dr. Acebal, is not admissible pursuant to the
“self-help” provisions contained in chapter 440.
from Dr. Acebal is not admissible evidence under the “self-help” provisions
contained in chapter 440. But, we nevertheless conclude that under the facts and
procedural history of this case, the JCC employed incorrect legal standards in
conducting the major contributing cause analysis required by section
440.09(1)(a)-(b), Florida Statutes (2005). We further conclude that the JCC also
used an incorrect legal test to determine whether the services and care provided
by Dr. Acebal were “emergency services and care,” compensable under chapter 440.
Because of these errors, and based on our conclusion that the opinion testimony
of those physicians who have provided compensable emergency services and care
are admissible as “authorized treating provider[s]” under section 440.13(5)(e),
Florida Statutes, we also conclude that the JCC used improper legal standards in
determining that Dr. Acebal’s medical opinions were inadmissible in the
proceedings below. Based on these errors, we reverse the order on appeal, and
remand for additional proceedings and additional factual findings based on the
correct legal standards announced herein and the evidence already offered in the
scope of his employment. The E/C accepted Claimant’s accident as compensable,
and authorized treatment of his lumbar spine with Dr. Christopher Brown.
Claimant declined surgical treatment offered by Dr. Brown, and in September
2006, Dr. Brown placed Claimant at maximum medical improvement (MMI) with a 6%
permanent impairment rating for an L5-S1 disc herniation. This lower back
condition was accepted as compensable by the E/C.
due to recurrent low back pain; Dr. Brown continued to recommend surgical
intervention for the compensable lower back injury, which Claimant declined. In
December 2010, Claimant agreed to undergo epidural steroid injections, and was
referred to Dr. Joel Salamon for pain management and the first injection, which
was authorized by the E/C. Dr. Brown saw Claimant twice after his pain
management referral, and on those visits Claimant reported significant
improvement. Claimant was scheduled for a second injection, but before receiving
this second injection he developed significant back and leg pain and had
at Kendall Regional Medical Center (KRMC) with a sedative and an injectable pain
medication before discharge. Claimant’s pain resumed the following day, and he
returned to the KRMC emergency room and was admitted under the care of Dr. Pablo
Acebal, a neurosurgeon. Dr. Acebal evaluated Claimant and ordered an MRI, which
revealed a massive herniated disc at L5-S1 which was severely compressing the
nerve roots of the spine. Based on his observation that Claimant was immobilized
and in “unbearable pain,” Dr. Acebal recommended prompt surgery at L5-S1 to
treat the condition.
offered to transfer Claimant’s surgery to Dr. Brown. Dr. Acebal advised Dr.
Brown that Claimant needed surgery because he had a “huge disc.” According to
Dr. Acebal, had Dr. Brown given any indication that he would have operated on
Claimant “quite quickly” (meaning the next day), he would have transferred
Claimant to Dr. Brown’s care. Nevertheless, Dr. Brown advised Dr. Acebal that if
Claimant’s condition was emergent and required surgery, “he probably shouldn’t
be transferred.” In deposition, Dr. Brown opined that if Claimant could have
been transferred, as offered by Dr. Acebal, then the surgery would be “more of
an elective type of thing” and “he really doesn’t need to be transferred,”
because Claimant could be treated on an outpatient basis. On March 22, 2011, Dr.
Acebal performed surgery on Claimant at the L5-S1 level. On March 23, 2011, the
E/C denied any future medical care and deauthorized Dr. Brown.
alia, temporary indemnity benefits (as he remained on modified work duty
following the surgery), authorization for continued treatment with Dr. Brown,
and compensability of the surgery performed by Dr. Acebal. The E/C contested all
of these claims based on the following defenses: “industrial accident not the
MCC of temporary disability; industrial accident no longer the MCC of the
current need for treatment as Claimant underwent surgery with an unauthorized
physician; such surgery was unauthorized and did not constitute emergency care;
carrier not placed on timely notice of alleged emergency care; and surgery not
medically necessary or causally related to accident.”
of Dr. Acebal. The E/C objected, arguing that Dr. Acebal’s medical opinion was
not admissible under section 440.13(5)(e) because he was not an “authorized
physician, independent medical examiner, or expert medical advisor.” The JCC
sustained the E/C’s objection, concluding that Dr. Acebal’s medical opinion was
inadmissible, and admitted the doctor’s deposition for “fact purposes only.”
accident was not the MCC of Claimant’s surgery, and that he could not determine
the MCC of the need for the surgery, because he was unaware of any other
potential causes of Claimant’s need for treatment. Dr. Brown further testified
that, although he did not observe Claimant or his condition at KRMC, he
concluded Claimant’s surgery was not performed on an emergency basis. According
to Dr. Brown, an “emergent reason for surgery would be cauda equina syndrome
where a patient would either lose control of his bowel or bladder and have a
large disc compressing the nerves that control those organs, and in the absence
of such signs, there is no need for an immediate surgery.” The E/C also
presented testimony from Dr. Salamon, Claimant’s pain management physician, that
back pain is “never” an emergency.
a “work related L5-S1 disk herniation and radiculopathy,” and that the “E/C has
agreed, and did stipulate” to the compensability of Claimant’s low back
condition. The JCC also found that there were no identifiable causes for
Claimant’s low back condition other than the compensable workplace injury and a
pre-existing spondylosis (which Dr. Brown opined contributed 10% to Claimant’s
symptoms). The JCC further found that the E/C failed to show a break in the
causal chain regarding the compensability of Claimant’s back injury, and the JCC
rejected “any medical opinion in evidence” suggesting that Claimant suffered a
subsequent injury or accident. Moreover, the JCC found that there was
insufficient record evidence to support the E/C’s contention that the “accident
is no longer the major contributing cause of the need for treatment[.]” The JCC
awarded ongoing treatment with Dr. Brown. None of the foregoing findings, each
favorable to Claimant and resulting in an award of benefits, have been
challenged by the E/C by way of cross-appeal.
however, the JCC found that Claimant failed to prove the compensable injury was
the MCC of the need for surgery. The JCC further found that Claimant failed to
satisfy his burden to persuade the JCC that Dr. Acebal’s “unauthorized” care and
services constituted “emergency services and care.” In addition, the JCC found
the E/C did not receive timely notice of the alleged emergency care.
Consequently, the JCC denied compensability of the surgery performed by Dr.
Acebal and the temporary indemnity benefits associated with the surgery.
The Compensable Injury
contest that the accident is the MCC of the injury. See Engler v. Am.
Friends of Hebrew Univ., 18 So. 3d 613, 614 (Fla. 1st DCA 2009) (“Once
compensability is established, an E/C can no longer contest that the accident is
the MCC of the injuries at issue.”); § 440.13(1)(e), Fla. Stat. (2005) (defining
“compensable” as “a determination by a carrier or [JCC] that a condition
suffered by an employee results from an injury arising out of and in the course
of employment.”); § 440.09(1)(a)-(b), Fla. Stat. (2005) (explaining major
contributing cause analysis requires comparison of relative causal relationships
between preexisting, subsequent, and compensable injuries); see generally
Jackson v. Merit Elec., 37 So. 3d 381, 383 (Fla. 1st DCA 2010)
(concluding carrier seeking to absolve itself from responsibility for medical
treatment necessitated by a compensable injury must “demonstrate a break in the
causation chain, such as the occurrence of a new accident or that the requested
treatment was due to a condition unrelated to the injury . . . .”).
compensable injury and provided compensable treatment for the better part of
five years, and further, because the medical records and opinions of Dr. Brown
established that the L5-S1 disc herniation was caused in major part by
Claimant’s compensable accident, the JCC found Claimant met his burden of
persuasion to establish a causal relationship between his workplace accident and
his L5-S1 disc herniation. The JCC rejected the E/C’s allegation and Dr. Brown’s
testimony suggesting Claimant suffered a subsequent accident and injury that
contributed to Claimant’s low back condition. The JCC further found there were
only two causes of Claimant’s lower back injury, the workplace injury and a
preexisting spondylosis, which Dr. Brown opined was responsible for 10% of
not wholly favorable to the E/C. Because the E/C neither appealed nor
cross-appealed the findings of fact favorable to Claimant, these favorable
findings cannot be challenged by the E/C in this appeal. A cross-appeal is an
appellee’s exclusive method of obtaining relief from error in an order, and
absent a cross-appeal, an appellee may not seek affirmative relief from any part
of the order; the appellee may only defend the order. See Premier Indus. v.
Mead, 595 So. 2d 122, 124 (Fla. 1st DCA 1992) (“Because Northbrook failed to
invoke the appellate jurisdiction of this court by filing a notice of appeal,
notice of cross appeal, or notice of joinder in the appeal by Premier and
Sentry, it has remained an appellee and is not authorized to use its status as
such to argue positions as an aggrieved party in derogation of the appealed
order.”). Based on the foregoing, and in light of the legal errors raised by
Claimant in this appeal, we conclude that the JCC misapplied the MCC standard in
denying the medical treatment at issue.
injuries under chapter 440. This section provides that “the accidental
compensable injury must be the major contributing cause of any resulting
injuries” for which treatment or benefits are sought. § 440.09(1), Fla. Stat.
(2005). “Major contributing cause” is expressly defined as “the cause which is
more than 50 percent responsible for the injury as compared to all
other causes combined for which treatment or benefits are sought.”
Id. (emphasis added). Although this definition does not contain a list of
“other causes” that may be considered in performing the MCC comparison, the two
subsections that follow — both of which specifically explain how MCC analysis
is to be performed — distinctly limit the “other causes” that may be considered
to (1) preexisting injuries and conditions, or (2) subsequent injuries.
See § 440.09(1)(a)-(b), Fla. Stat. (2005).
performed in a vacuum or, particularly, in the absence of competing causes, as
this court has previously concluded. See Lanham v. Dep’t of Envtl.
Prot., 868 So. 2d 561, 563 (Fla. 1st DCA 2004) (“In that the record
discloses there was only one cause of claimant’s injuries, rather than competing
causes, claimant was not required to present additional evidence going to the
issue of whether the work-related accident was the major contributing cause of
the injuries.”); Bysczynski v. United Parcel Servs., Inc., 53 So. 3d 328,
331 (Fla. 1st DCA 2010) (“In sum, because all the medical evidence establishes
that the only contributing causes of Claimant’s need for the cervical spine
fusion were occupational in nature, the JCC erred in applying the major
contributing cause standard to deny the surgery. Accordingly, the order on
appeal is reversed and this case is remanded for entry of an order authorizing
the surgical spine fusion.”); see also Caputo v. ABC Fine Wine &
Spirits, 93 So. 3d 1097, 1098 (Fla. 1st DCA 2012) (stating if “ ‘there was
only one cause of claimant’s injuries, rather than competing causes, claimant
was not required to present additional evidence going to the issue of whether
the work-related accident was the major contributing cause of the injuries.’ ”
(quoting Lanham, 868 So. 2d at 563)).
herniation, the E/C attempted to demonstrate a break in the causation chain
between the workplace accident and the compensable lower back injury, and sought
to prove that the surgery was to treat a new and unrelated injury or medical
condition. But, the JCC found Claimant did not have a subsequent accident or
lower back injury. Because the E/C did not cross-appeal the JCC’s findings in
this regard, including the JCC’s rejection of all medical opinions founded on
the occurrence of a subsequent accident or injury, these findings cannot be
reviewed by this court. Premier Industries, 595 So. 2d at 122.
condition for which the medical treatment at issue here was provided: the L5-S1
herniated disc and a preexisting spondylosis. Further, the JCC did not find that
the preexisting spondylosis was the MCC of Claimant’s need for medical
treatment; on the contrary, the JCC awarded Claimant ongoing medical care
because there was insufficient evidence to support the E/C’s assertion that the
workplace accident was no longer the MCC of Claimant’s need for medical
need for surgery are inconsistent. Under the dictates of section 440.09(1)(b),
Florida Statutes (2005), and this court’s relevant case law, the JCC should have
weighed the relative contributing forces of the two established contributing
causes of Claimant’s lower back injury that required medical treatment. Because
the JCC failed to engage in such analysis, we reverse and remand for the JCC to
perform MCC analysis consistent with this opinion — based on the evidence
already introduced, and in light of the unchallenged factual findings favorable
to Claimant contained in the appealed order.
Emergency Services and Care
also applied an incorrect legal standard to determine that the medical care
provided by Dr. Acebal did not constitute “emergency services and care.”
Claimant’s argument on this point also has merit.
is defined, by its reference to section 395.002, Florida Statutes (2005), as
(10) “Emergency services and care” means medical screening,
examination, and evaluation by a physician, or, to the extent permitted by
applicable law, by other appropriate personnel under the supervision of a
physician, to determine if an emergency medical condition exists and, if it
does, the care, treatment, or surgery by a physician necessary to relieve or
eliminate the emergency medical condition . . . .
when a physician undertakes a medical screening, examination, or evaluation to
determine whether an emergency medical condition exists. Here, the JCC concluded
that, because the surgery performed by Dr. Acebal was not an emergency,
Dr. Acebal provided no emergency services and care. But, the JCC did not
consider the variety of services that are covered under section 395.002(10),
including “medical screening, examination, and evaluation by a physician . . .
to determine if an emergency medical condition exists.” Id.
regarding whether emergency services and care were provided by Dr. Acebal are:
(1) whether the service provider is a licensed physician (or other appropriate
personnel acting under the supervision of a physician); (2) whether an
evaluation, screening, or examination was conducted by that physician (or other
authorized personnel); and (3) whether such care was undertaken by the physician
with the intent of determining “if an emergency medical condition exists.” Under
normal circumstances, these simple questions can be answered by the finder of
fact without resort to medical opinion testimony.1
395.002, and thereby under section 440.13(1), “emergency services and care” of
some sort have been provided. Here, the foregoing relevant questions went
unanswered by the JCC; accordingly, we agree that the JCC employed an incorrect
legal standard in determining whether Dr. Acebal provided emergency services and
care of some sort to Claimant.
emergency services and care were rendered to Claimant by Dr. Acebal, and
further, because the evidence is such that a reasonable finder of fact could
conclude that the evaluations and diagnostics performed by Dr. Acebal qualified
as “emergency services and care” as defined under the Workers’ Compensation Law,
we reverse and remand for the JCC to determine whether Dr. Acebal provided any
services and care that would qualify as “emergency services and care” as defined
under the statutory provisions discussed herein.
make such care “compensable” under chapter 440. Neither does this fact alone
render the providing physician eligible for payment under chapter 440, nor does
the fact that a doctor who provides some compensable emergency care, such as
examinations and screening, make all care provided by this doctor compensable.
Rather, the compensability of emergency care under chapter 440, and the
providing physician’s eligibility for payment for such care, is dependent on
additional elements contained in the Workers’ Compensation Law.
care awardable under chapter 440, the care must be medically necessary. §
440.13(2)(a), Fla. Stat. (2005) (an employer has an obligation to provide “such
medically necessary remedial treatment, care, and attendance for such period as
the nature of the injury or the process of recovery may require,” including
emergency care). Second, under section 440.13(3)(b), emergency care is
“compensable” if the “injury requiring emergency care arose as a result of” the
workplace accident. Thus, to be “compensable,” such care must be not only
“emergency” care, but also “medically necessary,” and it must be provided for a
workplace injury based on the JCC’s uncontested findings. On remand, if the JCC
determines that Dr. Acebal provided emergency services and care, including
screening and testing, the JCC must then determine whether any of the emergency
services and care were compensable under the standards announced above —
without reliance on Dr. Acebal’s medical opinion testimony.
medical opinion testimony was inadmissible under section 440.13(5)(e), Florida
Statutes (2005). For the reasons that follow, we hold that a proper
interpretation of section 440.13(5)(e) permits admission of medical opinion
testimony from a physician who is first proven, through other admissible
testimony or other permissible means, to have provided emergency care and
services compensable under chapter 440.2
Section 440.13(5)(e) — “Authorized Treating Provider”
(e) No medical opinion other than the opinion of a medical advisor
appointed by the judge of compensation claims or the department, an independent
medical examiner, or an authorized treating provider is admissible in
proceedings before the judges of compensation claims.
testimony to an expert medical advisor “appointed by the [JCC],” an independent
medical examiner, or an “authorized” treating physician.
must receive express authorization “from the carrier”3 to be eligible for payment for treatment provided
to an injured worker, this rule does not apply to emergency care physicians.
See § 440.13(3)(a), Fla. Stat. (2005). By legislative decree, “all
licensed physicians and health care providers in this state shall be required to
make their services available for emergency treatment of any employee eligible
for workers’ compensation benefits,” with or without authorization from a
carrier. § 440.13(3)(b), Fla. Stat. (2005). “To refuse to make such treatment
available is cause for revocation of a license.” Id.
authorized by the carrier, and only through such authorization may a physician
become eligible for payment (except where the self-help provisions of section
440.13(2)(c) are at play). Cf. Lakeland Reg’l Med. Ctr. v. Murphy,
695 So. 2d 895 (Fla. 1st DCA 1997) (holding claimant cannot “authorize” doctor
under chapter 440), with Parodi v. Fla. Contracting Co., Inc., 16
So. 3d 958, 962 (Fla. 1st DCA 2009) (rejecting argument that “authorization of a
physician can emanate only from the unassailable discretion of an employer or
carrier,” and holding JCC may “authorize” physician where E/C has wrongfully
denied care). In emergency care, however, all licensed physicians are both
permitted and required to provide such care, regardless of whether
authorization has been furnished. See § 440.13(3)(a)-(b), Fla. Stat.
(2005). Thus, based on a reasonable and harmonious reading of the statutory
provisions, we conclude that where the admissible medical and lay testimony
establishes that a physician has provided compensable emergency medical
services, that physician’s medical opinion testimony is admissible as an
“authorized treating provider” under section 440.13(5)(e).
authorized by the carrier cannot offer admissible medical opinions, until and
unless it is first established that this provider furnished compensable care
that was medically necessary. 113 So. 3d 1004 (Fla. 1st DCA 2013). The facts in
Oursler are distinguishable from this case, however, because there, the
claimant failed to sufficiently establish that the medical care at issue was
compensable or medically necessary, rendering the unauthorized physician’s
testimony inadmissible. In this case, however, depending on the JCC’s findings
of fact made on remand, the facts may establish that Claimant received
compensable “emergency services and care.”
be considered an authorized doctor, whose opinion might become admissible. To
[b]ecause some medical care from unauthorized providers can later be
determined to be covered by workers’ compensation by operation of law, such as
that care given in emergency situations . . . , such providers’ medical opinions
can become admissible as a matter of law.
without relying on Dr. Acebal’s medical opinion testimony, that Dr. Acebal
provided medically necessary and compensable emergency services and care of any
sort to Claimant, the JCC must then find Dr. Acebal a treating provider
“authorized” to provide such care under chapter 440. If such a finding is made,
then, and only then, shall the JCC admit Dr. Acebal’s medical opinion testimony
into evidence under section 440.13(5)(e), to determine whether the surgery
performed by Dr. Acebal qualifies as emergency services and care under chapter
determine whether Dr. Acebal’s medical opinion was admissible, we now turn to
the issue of whether the JCC also used an incorrect standard in determining that
the surgery performed by Dr. Acebal did not qualify as compensable emergency
services and care under chapter 440.
“emergency services and care” include screening, examinations, and evaluations
performed by a physician “to determine if an emergency medical condition exists
and, if it does, the care, treatment, or surgery by a physician necessary to
relieve or eliminate the emergency medical condition . . . .” An “emergency
medical condition,” as defined in section 395.002(9)(a), Florida Statutes
(a) A medical condition manifesting itself by acute symptoms of
sufficient severity, which may include severe pain, such that the absence
of immediate medical attention could reasonably be expected to result in any of
1. Serious jeopardy to patient health, including a pregnant woman or
2. Serious impairment to bodily functions.
3. Serious dysfunction of any bodily organ or part.
he testified that Claimant was immobile, in “unbearable pain,” and could not
move or stand. Claimant’s symptoms included a massive herniated disc, associated
weakness and numbness, “unbearable” pain, and inability to move — conditions
which, according to Dr. Acebal’s testimony, impaired Claimant’s ability to walk,
a bodily function. Further, Dr. Acebal testified that if this condition was not
ameliorated, it could have caused serious jeopardy to Claimant’s health, such as
cauda equina syndrome.
on Dr. Brown’s testimony that an emergent reason for surgery would be cauda
equina syndrome, and Dr. Salamon’s testimony that back pain is “never” an
emergency. But this is not the correct legal test. Section 395.002(9)(a) does
not limit an emergency to certain medical signs, such as cauda equina syndrome,
and it does not exclude back pain. Indeed, this statutory provision specifically
provides that an “emergency medical condition . . . may include severe pain,”
where such a condition, in the absence of immediate medical attention, “could
reasonably be expected to result” in serious impairment or dysfunction of any
bodily function or part. Id. As a matter of law, contrary to the
testimony of both Dr. Brown and Dr. Salamon, section 395.002(9)(a) (and thus
sections 395.002(10) and 440.13(1)(f)) permits pain to serve as the basis of an
emergency medical condition, if in “the absence of immediate medical attention”
the claimant could reasonably be expected to suffer “serious impairment to
bodily functions” or “serious dysfunction of any bodily organ or part.” §
395.002(9)(a), Fla. Stat. (2005).
was medically necessary. Thus, because the JCC employed incorrect legal
standards to determine whether the surgery qualified as emergency services and
care, and thus compensable under chapter 440, and because the JCC used an
improper standard to determine whether Dr. Acebal’s medical opinion was
admissible in the proceedings below, we reverse the JCC’s denial of the
compensability of the surgery and remand for reconsideration based on the proper
legal standards announced herein.
surgery was not compensable, because the emergency provider failed to give the
E/C timely notice of the emergency treatment, as required under section
440.13(3)(b), Fla. Stat. (2005) (“A health care provider who renders emergency
care must notify the carrier by the close of the third business day after it has
rendered such care.”). It is undisputed that neither Dr. Acebal nor any other
party from KRMC ever notified the Employer or Carrier after Dr. Acebal’s
treatment. Section 440.13(3)(b), however, does not speak to the compensability
of the care. It does not address whether the medical treatment or care is
sufficiently related to a compensable condition, nor does it alter any facts
that might establish that such care was provided on an emergency basis.
penalty to the claimant for the emergency health care provider’s failure
to give the E/C timely notice of the emergency treatment. To the extent that
this statutory notice requirement might affect the compensation that Dr. Acebal
is entitled to receive, as opposed to his eligibility for payment based on the
compensability of the treatment, the JCC has no jurisdiction over any billing
disputes between Dr. Acebal and the E/C relative to the provision of compensable
care. See J.B.D. Bros. v. Miranda, 25 So. 3d 1271 (Fla. 1st DCA
2010) (explaining JCC lacks jurisdiction over billing dispute between carrier
and medical provider).
Legislature intended that an emergency health care provider’s failure to comply
with the notice provisions contained therein renders a claimant responsible for
the payment for emergency medical treatment, we decline to adopt such an
interpretation here. On remand, should the JCC determine that the surgery
provided by Dr. Acebal was medically necessary and was provided on an emergency
basis for a compensable injury, the JCC shall not decide any potential
reimbursement dispute between the E/C and Dr. Acebal, as the Department of
Financial Services has exclusive jurisdiction over such disputes. See §
440.13(11)(c), Fla. Stat. (2012) (stating Department of Financial Services “has
exclusive jurisdiction to decide any matters concerning reimbursement”).
compensability of the emergency surgery performed by Dr. Acebal, and the
resulting denial of requested temporary indemnity benefits related to this
surgery. We remand the case for further proceedings and findings of fact
consistent with this opinion, based on the evidence already offered by the
consistent with this opinion. (WOLF, J., CONCURS; MARSTILLER, J., DISSENTS
1Notwithstanding the fact that Dr. Acebal
did not obtain authorization from the carrier before providing medical services,
there is no dispute that Claimant was permitted to introduce the doctor’s
factual testimony regarding Claimant’s admission to the emergency room,
including Claimant’s appearance, complaints, diagnosis and treatment. See
Office Depot, Inc. v. Sweikata, 737 So. 2d 1189, 1191 (Fla. 1st DCA
1999). The issue of whether emergency servivces and care have been provided can,
under appropriate circumstances, be established by non-expert testimony.
See Univ. of Fla. Bd. of Trustees v. Stone ex rel. Stone, 92 So.
3d 264 (Fla. 1st DCA 2012).
2We are mindful of our opinion in
Chudnof-James v. Racetrac Petroleum, Inc., 827 So. 2d 369 (Fla. 1st DCA
2002), where we concluded that the only evidence to support the causal
relationship or the medical necessity of the emergency treatment was the opinion
of the emergency room physician, which was inadmissible under section
440.13(5)(e); thus, we held the claimant failed to prove by admissible evidence
or other permissible means that the emergency care was compensable.
Here, based on admissible lay and expert testimony, and based on the absence
of a legal controversy as to the compensability of Claimant’s injuries, there is
a sufficient basis for a reasonable finder of fact to conclude that Dr. Acebal
provided compensable emergency services and care. Thus, Chudnof-James
does not control the outcome here. Nevertheless, we reiterate that a doctor not
authorized by the carrier cannot offer medical opinion testimony, until
it is first proven by independently admissible testimony or other permissible
means, such as stipulations or by operation of law, that the physician in
question provided compensable medical services.
3We observe that in section 440.13(3)(a),
but not in section 440.13(5)(e), the Legislature qualified the term
“authorization” by adding the phrase “from the carrier.” If, however, the term
“authorization” signals only that power emanating from a carrier’s express grant
of authority, there would be no need for the Legislature to have qualified the
term “authorized” in section 440.13(3)(a) by the phrase “from the carrier,” as
such language would be surplusage, which would violate canons of statutory
construction requiring that verba cum effectu sunt accipienda, “words are
to be taken as having an effect.” See generally, Scalia and Gardner,
Reading Law: The Interpretation of Legal Texts, p. 174 (1st Ed. 2012).
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