Jeffrey P. Gale, P.A. // Presenting Medical Opinion Testimony in Controverted Florida Workers’ Compensation Cases

surgeon-3-391477-m-300x225Florida workers’ compensation statute 440.13(5)(e) limits the presentation of medical opinion testimony as follows:

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.

Florida’s First District Court of Appeal says otherwise … in limited circumstances.

In Parodi v. Florida Contracting Co., Inc., 16 So. 3d 958 (Fla. 1st DCA 2009), the employer/carrier (E/C) suspended all benefits and de-authorized all medical care after discovering records from prior accidents, based on major contributing cause (MCC) and fraud. Thereafter, Claimant obtained medical treatment on his own and pursued authorization of same through the self-help provisions of section 440.13(2)(c). The Judge of Compensation Claims (JCC) found the E/C “forced” Claimant to obtain treatment on his own and that the treatment Claimant obtained [from Dr. Benezette and Dr. Kirkpatrick] was reasonable, medically necessary, and compensable. Accordingly, the JCC ordered the E/C to pay the doctors’ outstanding bills along with Claimant’s corresponding out-of-pocket expenses. However, the JCC refused to consider the doctors’ opinions on other matters because they did not meet any of the 440.13(5)(e) categories.

The JCC’s refusal was reversed on appeal. The court explained that “when the E/C wrongfully denies medical care and the claimant is required to utilize the self-help provisions of section 440.13(2)(c), the JCC is not obliged to exclude the opinions of the doctors from whom Claimant was forced to obtain medical treatment.” Id at 961. See also Fla. Distillers v. Rudd, 751 So.2d 754, 757 (Fla. 1st DCA 2000) (superseded by statute on other grounds) and Boggs v. USA Water Ski, Inc., ___ So.3d ___ (Fla. 1st DCA 2009). For a Claimant to obtain this consideration, which is tantamount to a provider being authorized by operation of law, he must establish that he made a specific request for the care, allowed the employer or carrier a reasonable time to respond, and obtained care that was compensable, reasonable, and medically necessary. See § 440.13(2)(c), Fla. Stat. (2018).

In Hidden v. Day & Zimmerman/Florida Power & Light Company, (Fla. 1st DCA 2016), the Claimant argued for benefits under the Parodi principle. Things did not work out for the Claimant as planned.

The Claimant alleged that he hurt his neck at work. The E/C did not accept the 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. Thereafter, he filed a petition for benefits seeking compensability of the conditions diagnosed by the doctors. Their depositions were taken and offered into evidence. 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).

The JCC agreed with the E/C, excluding the testimony, and the 1st DCA affirmed on appeal. In my opinion, the DCA drew a seemingly nonsensical distinction with Parodi. In Parodi, because compensability had once been accepted before it was denied, testimony from the self-help doctors was allowed. In Hidden,  because compensability was never granted, the same type of testimony was rejected. (The court further illustrates the compensability vs. non-compensability distinction by noting that the Parodi principle also applies in cases where the Claimant receives self-help care in otherwise compensable cases simply due to the carrier’s failure to authorize initial care in a timely manner.)

All is not lost. Claimants can designate an IME doctor to render necessary medical opinions. Unfortunately, the IME route is more costly than the Parodi route. While the Hidden court suggests that the treating doctor can be designated as the IME, this ignores the 440.13(5) requirement that the other party must agree. In contested cases, especially, the other side rarely agrees to make the opponent’s life easier.


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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.

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