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October 14, 2016 by Tom

Workers’ compensation — Evidence — Medical — Judge of compensation claims did not err in excluding depositions of non-authorized physicians who opined that claimant’s symptoms were caused by work-related incident where the physicians were not authorized treating physicians, independent medical examiners, or expert medical advisors

41
Fla. L. Weekly D2293a
Top of Form

Workers’
compensation — Evidence — Medical — Judge of compensation claims did not err
in excluding depositions of non-authorized physicians who opined that
claimant’s symptoms were caused by work-related incident where the physicians
were not authorized treating physicians, independent medical examiners, or
expert medical advisors — Opinions of physicians were not admissible as
opinions of self-help doctors after employer/carrier failed to provide initial
treatment where there was no other admissible evidence that the care rendered
by the physicians was compensable and medically necessary — Self-help doctor’s
opinion that care was compensable and medically necessary cannot “bootstrap”
itself into evidence

DANE
HIDDEN, Appellant, v. Day & Zimmerman/Florida Power & Light
Co./Broadspire, Appellees. 1st District. Case No. 1D16-1045. Opinion filed
October 7, 2016. An appeal from an order of the Judge of Compensation Claims.
Robert D. McAliley, Judge. Date of Accident: May 22, 2015. Counsel: James T.
Walker of Hayskar, Walker, Schwerer, Dundas & McCain, P.A., Ft. Pierce, for
Appellant. William H. Rogner and Derrick E. Cox, Winter Park, for Appellees.

(PER
CURIAM.) In this workers’ compensation case, Claimant argues that the Judge of
Compensation Claims (JCC) erroneously (1) excluded certain medical evidence,
and (2) failed to rule on his entitlement to indemnity benefits. We affirm the
second issue without further comment, and we affirm the first issue for the
reasons that follow.

Factual
and Procedural Background

Claimant
alleged that he developed a sudden pain in his neck when opening heavy lids on
equipment lockers at work on May 22, 2015. Although Claimant lost
consciousness, no injury was readily observable. Claimant was transported by
ambulance to an emergency room, but the Employer/Carrier (E/C) did not
authorize this or any other medical care. The E/C did not accept any injury as
compensable, theorizing that Claimant’s neck pain was preexisting and not
work-related.

Claimant
subsequently saw two doctors that were not authorized by the E/C to treat him:
Dr. Brown, an orthopedic surgeon, and Dr. Estes, a physical rehabilitation and
pain management specialist. Dr. Brown diagnosed Claimant with “whiplash-type
syndrome” and cervicalgia (neck pain), and prescribed physical therapy and
medication. Dr. Estes also diagnosed Claimant with cervicalgia — as well as a
sprain of the cervical spine and a small posterior C5-C6 disc protrusion — and
administered cervical epidural steroid injections. Both Drs. Brown and Estes
opined that Claimant’s symptoms were caused by the work-related incident, although
Dr. Estes added that the disc protrusion was not necessarily work-related.

Claimant
thereafter filed a petition for benefits seeking, among other things, a
determination that the injuries diagnosed by Drs. Brown and Estes are
compensable. At the hearing before the JCC, Claimant submitted the depositions
of Drs. Brown and Estes in support of the petition. The E/C objected to the
medical opinions in the depositions based on section 440.13(5)(e), Florida
Statutes (2014), which prohibits the admission of medical opinion evidence in
workers’ compensation proceedings from anyone other than an authorized treating
physician, independent medical examiner (IME), or expert medical advisor (EMA).
Claimant responded that the opinions of Drs. Brown and Estes were admissible
because the two doctors were authorized by operation of law pursuant to section
440.13(2)(c), which permits an injured employee to obtain so-called “self-help”
at an E/C’s expense when the E/C “fails to provide initial treatment . . .
after request by the injured employee.”

The
JCC excluded the medical opinions in the depositions, reasoning that because
the opinions were not admissible ab initio, they could not establish
their own admissibility by their content — i.e., the opinions could not “bootstrap”
themselves into evidence. And, because without the opinions of Drs. Brown and
Estes there was no medical evidence to establish that Claimant’s injuries were
work-related, the JCC denied the petition seeking compensability and all other
benefits sought by Claimant.

This
appeal follows.

Analysis

Section
440.13(5)(e), by its plain language, excludes from workers’ compensation
proceedings the medical opinions of any doctor (other than IMEs and EMAs) who
has not been authorized by the employer/carrier. And section 440.13(2)(c), by
its plain language, permits self-help (and thus authorization by operation of
law) only “if the initial treatment or care is compensable and medically
necessary.” Thus, the medical opinions of an unauthorized self-help doctor are
not admissible unless and until it is established — by other admissible
evidence and medical opinions — that the care rendered by the self-help doctor
was compensable and medically necessary. See Miller Elec. Co. v.
Oursler
, 113 So. 3d 1004, 1009 (Fla. 1st DCA 2013) (explaining that “a
claimant seeking . . . to introduce medical opinions ordinarily excluded by
section 440.13(5)(e), can establish the factual circumstances of the care at
issue with ‘fact-purposes only’ evidence from the provider of that care, but
must also present medical opinions from another source . . . to establish . . .
the compensability and medical necessity . . . of the care at issue”); Parodi
v. Fla. Contracting Co.
, 16 So. 3d 958, 962 (Fla. 1st DCA 2009) (“The
employee retains the burden . . . to establish that he . . . obtained care that
is compensable, reasonable, and medically necessary.”). The self-help doctor’s
opinion that the care was compensable and medically necessary cannot
“bootstrap” itself into evidence. See Oursler, 113 So. 3d at 1009
(“A claimant cannot use medical opinion evidence barred by section 440.13(5)(e)
to ‘bootstrap’ itself — or other medical opinions from the same source — into
evidence. To permit such bootstrapping would contravene the legislative intent
of section 440.13(2)(c) . . . .”).

Claimant
asserts that this court’s prior cases on bootstrapping do not apply here
because those cases did not involve the denial of “initial” care. See, e.g.,
Oursler, supra; Romano v. Trinity Sch. for Children, 43
So. 3d 928 (Fla. 1st DCA 2010); Carmack v. Dep’t of Agric., 31 So. 3d
798 (Fla. 1st DCA 2009); Boggs v. USA Water Ski, Inc., 18 So. 3d 610
(Fla. 1st DCA 2009); Parodi, supra. Claimant is correct that, in
each of those cases, the employer/carrier involved provided at least some
authorized care for some condition, but Claimant is mistaken about the law. The
requirements in section 440.13(2)(c) apply equally whether the care rendered by
the self-help doctor is “initial” care (as contemplated by the plain language
of the statute) or whether it is care obtained after an employer/carrier that
initially accepted compensability later denies care requested by the claimant
(as in Parodi and the other cases cited above). Indeed, no case has ever
suggested — nor could the statute be reasonably construed to mean — that a
self-help doctor is authorized by operation of law merely because that doctor
provides “initial” treatment or care that he or she believes is compensable.

In
reaching this conclusion, we have not overlooked Claimant’s argument that
excluding the self-help doctor’s opinions from evidence where, as here, the
employer/carrier refused to authorize any treatment or care leaves the employee
without a remedy and undermines the self-executing nature of the workers’
compensation system. However, we reject this argument because, as the E/C
pointed out in its answer brief, there are a number of ways that an employee in
Claimant’s situation could proceed. For example, the employee could designate
the self-help doctor as his or her IME, thereby making the doctor’s opinion
admissible under section 440.13(5)(e), or the employee could petition for an
advance under section 440.20(12) to pay for another doctor who could be
designated as an IME that could be used establish the compensability
prerequisite for the admission of the self-help doctor’s opinions.

Conclusion

For
the reasons stated above, the JCC’s order is AFFIRMED. (LEWIS, WETHERELL, and
JAY, JJ., CONCUR.)

* *
*

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