IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DANE HIDDEN, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1045
DAY &
ZIMMERMAN/FLORIDA
POWER & LIGHT
CO./BROADSPIRE,
Appellees.
_____________________________/
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.
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.
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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.
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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"
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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.
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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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