43
Fla. L. Weekly D66a

 

Top of FoWorkers’
compensation — Repetitive trauma — Medical benefits — Surgery — Judge of
compensation claims failed to accord expert medical advisor’s opinion its due
when he relied solely on “reasonableness” of recommended surgery and ignored
EMA’s opinion that recommended surgery was not medically necessary — Because
JCC failed to apply correct standard in assessing EMA’s opinion and further failed
to articulate reason for rejecting the opinion, he abused his discretion in
awarding the surgeries at issue

ASCENSION BENEFITS & INSURANCE
SOLUTIONS OF FLORIDA and CITY OF ORLANDO, Appellants, v. RUSSELL ROBINSON,
Appellee. 1st District. Case No. 1D16-5853. Opinion filed December 27, 2017. An
appeal from an order of the Judge of Compensation Claims. Neal P. Pitts, Judge.
Date of Accident: March 11, 2009. Counsel: Richard B. Robbins and Theodore N.
Goldstein of Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A.,
Orlando, for Appellants. Charles H. Leo of Law Offices of Charles H. Leo, P.A.,
Orlando, and Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee,
for Appellee.

(PER CURIAM.) In this workers’
compensation appeal, the Employer/Carrier (E/C) raise two issues on appeal and
Claimant raises three on cross-appeal. We affirm all issues with the exception
of the award of surgery challenged by the E/C, which we reverse as discussed
below.

Background

Claimant’s compensable injuries came
about as a result of repetitive trauma involving both hands and both elbows. In
2016 a disagreement arose between Claimant’s authorized treating physician and
Claimant’s independent medical examiner (IME) as to the nature of the treatment
needed to address Claimant’s compensable injuries. Claimant filed a motion
outlining that disagreement, which resulted in the appointment of an expert
medical examiner (EMA). Among other questions posed to the EMA, the JCC asked
that he opine as to what reasonable and medically necessary treatment was
needed for Claimant’s compensable hand and upper extremity injuries.

The JCC, in the order under review,
found that Dr. Rayhack, the EMA, “agreed that surgery on the residual lateral
epicondylitis and for release of the trigger fingers would be reasonable,” and
“that there is no clear and convincing evidence to reject the medical opinions
of Dr. Rayhack with regards to the reasonableness of the requested surgeries
being awarded.” Alternatively, the JCC found that Dr. Rayhack’s opinion
regarding surgical releases, when considered in its totality, was inconclusive.
Nevertheless, the JCC found, based on the opinions of both Dr. Rayhack and
Claimant’s IME, that the surgical releases of the elbow and trigger fingers
were reasonable and medically necessary. The E/C maintain on appeal that, in
awarding the surgeries, the JCC misinterpreted the EMA’s opinion. Rather, argue
the E/C, the EMA’s opinion was that the surgeries were not necessary nor
recommended.

Analysis

Where the JCC’s findings are called
into question as not consistent with the evidence, this court reviews for abuse
of discretion. See Ullman v. City of Tampa Parks Dep’t, 625 So.
2d 868, 873 (Fla. 1st DCA 1993) (“The role of this court must be to guard
against fanciful or arbitrary abuse of discretion in workers’ compensation
cases, and we will continue to do so by scrutinizing JCC findings under the
lift of the basic rule requiring [CSE] in support of such findings.”). See
also Lemmer v. Urban Elec., Inc., 947 So. 2d 1196, 1199 (Fla. 1st
DCA 2007) (reversing JCC’s denial of benefits based on findings not consistent
with record). “A court abuses its discretion when no reasonable person could
reach the same conclusion.” Verkruysse v. Fla. Carpenters Reg’l Council,
27 So. 3d 157, 159 (Fla. 1st DCA 2010).

Under paragraph 440.13(2)(a),
Florida Statutes (2008), an injured employee is entitled to “such medically
necessary remedial treatment, care, and attendance for such period as the
nature of the injury or the process of recovery may require.” Under paragraph
440.13(9)(c), Florida Statutes (2008), an EMA must be appointed when “there is
a disagreement in the opinion of the health care providers.” Further, “[t]he
opinion of the [EMA] is presumed to be correct unless there is clear and
convincing evidence to the contrary as determined by the [JCC].” Id.

Here, the JCC found that Dr. Rayhack
testified that surgery for the residual lateral epicondylitis and for release
of trigger fingers would be “reasonable.” Reasonableness is not, however, the
only standard to apply when awarding medical treatment. As noted above,
paragraph 440.13(2)(a) specifically requires that the treatment be “medically
necessary.” Thus, it is not enough that the treatment be “reasonable,” it must
be “medically necessary,” and it was Claimant’s burden to prove medical
necessity. See Morrow v. Sam’s Club, 17 So. 3d 763, 764 (Fla. 1st
DCA 2009) (explaining that entitlement to all medical treatment is governed by
paragraph 440.13(2)(a), “which requires a showing of medical necessity”). See
also Trevino v. Dep’t of Revenue, 82 So. 3d 930, 932 (Fla. 1st DCA
2011) (“Generally, it is the claimant’s burden to prove entitlement to any
requested benefit.”).

Importantly, Dr. Rayhack did not
opine that the surgeries were medically necessary. To the contrary, he made it
clear that he was not recommending them. In his report, he stated that he
“would not recommend additional upper extremity surgery as I feel it is
unlikely that this patient would benefit from additional hand, wrist, or elbow
surgery.” On direct examination during his deposition he explained his concern
with trigger finger surgery; specifically, it had the possibility to make
Claimant worse and was unlikely to offer Claimant any relief. He had similar
concerns about the elbow surgery, explaining that surgery is rarely done and
only for refractory cases; rather, it is almost always treated conservatively.
On cross-examination, Dr. Rayhack opined that no further surgeries on the
relevant nerves were recommended, although he did agree that the trigger finger
releases were “reasonable” if some other physician wanted to do them.

The JCC’s error in relying on
“reasonableness,” and ignoring medical necessity, both in his primary analysis
and in his alternative analysis, is that the JCC failed to accord the EMA’s
opinion its due — that it is presumptively correct. Further, the JCC failed to
articulate clear and convincing evidence to the contrary. The doctor was asked
whether there was any treatment he would recommend. He responded that he did
not recommend further upper extremity surgeries. His acknowledgement that
another physician might perform such a surgery is not clear and convincing
evidence so as to call his opinion into question. See Travelers Ins.
v. Armstrong, 118 So. 3d 865, 866 (Fla. 1st DCA 2013) (reversing JCC’s
rejection of EMA’s opinion for failure to articulate clear and convincing
reasons for doing so where one reason given was that “JCC found that it was
‘notable’ that the EMA avoided answering a question about whether Claimant was
a surgical candidate. However, the record shows that the EMA stated in his
report that he would not recommend surgery for Claimant and he reaffirmed this
statement during this deposition”).

Because the JCC failed to apply the
correct standard in assessing Dr. Rayhack’s opinion, and further failed to
clearly articulate a reason for rejecting the EMA’s opinion, he abused his
discretion in awarding the surgeries, and this issue is reversed.

Accordingly, we AFFIRM in apart, and
REVERSE in part, and REMAND for proceedings consistent with this opinion.
(WOLF, WINOKUR, and JAY, JJ., CONCUR.)

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