Florida statute section 440.13(5)(e) limits who may give medical opinions in workers’ compensation trials to “a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider.”
Our office recently accepted a 23 year old workers’ compensation case where the employee has not received any workers’ compensation benefits for 22 years. The workers’ compensation insurance carrier has raised two defenses to the claim: (1) Statute of Limitations and (2) causal relationship between the current complaints (back and leg pain) and the injury suffered in 1995 (a tibial fracture requiring medullary rodding) — see, 440.02(36).
To carry our burden of establishing the necessary causal connection (to defeat defense #2), medical testimony must be presented. The original surgeon, who was then authorized by the workers’ compensation carrier, is still practicing medicine in Miami-Dade County. Our plan is to have him evaluate the claimant to give his opinion on the issue.
The employer/carrier (E/C) claims that the doctor is no longer “an authorized treating provider,” precluding him from being qualified to give the key opinion testimony. We believe that E/C is wrong.
In Russell v. Orange County Public Schools Transportation, 36 So.2d 743 (Fla. 1st DCA 2010), the E/C took the same position towards a doctor who was de-authorized when another doctor took over caring for the claimant.
The court felt that a plain reading of the statute did not offer guidance. It noted that “the statute does not use the term ‘”currently authorized treating provider”‘ or otherwise suggest the authorization of the provider must be in existence at the time of the benefits hearing.” Given the statute’s ambiguity, the court was left with determining legislative intent.
The court lays out the relevant legislative history, then concludes with the following decision:
We find that interpreting section 440.13(5)(e) to preclude the admission of a de-authorized physician’s medical opinion would contravene the purposes of both section 440.13(5)(e) and chapter 440.
While not exactly on point, we believe that it is close enough for our purposes to win the argument. Even still, we may go the IME route.
Contact us at 305-758-4900 or by email to learn your legal rights.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.
While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.