PEDRO LEON, APPELLANT,
v.
CSB SERVICES, INC., NORTH AMERICAN RISK SERVICES, INC., SEA BRIGHT INSURANCE, APPELLEES
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In this workers' compensation case, the Court reversed a Judge of Compensation Claims' denial of Claimant's request to replace his authorized treating physician, Dr. Linares, who had become uncooperative and unwilling to treat. The court held that the JCC erred by raising and deciding the case on the medical necessity defense, which the Employer/Carrier never asserted below, violating due process.
The Court reversed and remanded, holding that the JCC erred by sua sponte raising and deciding the case on the medical necessity defense. The Employer/Carrier waived any challenge to medical necessity by failing to assert it in the pretrial proceeding, and its insistence that Dr. Linares remained authorized constituted an effective stipulation to medical necessity.
[1] A Judge of Compensation Claims may not sua sponte deny a claim based on a defense not raised by the employer/carrier.
[2] Failure to raise the defense of medical necessity in a pretrial stipulation constitutes a waiver of that defense.
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Join FLexlaw to unlock all legal intelligence“a JCC's sua sponte denial of a claim based on a defense not raised at all by the E/C below is a violation of the claimant's right to due process”
Establishes the primary legal principle that courts cannot raise and decide cases on defenses not asserted by the opposing party, as this violates due process.
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Join FLexlaw to unlock all legal intelligenceClaimant sustained a compensable workers' compensation injury in December 2000 and attained maximum medical improvement in 2002 with a permanent impai…
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In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC)' denying his claim for replacement of his ’authorized treating physician. For the reasons that follow, we reverse.
Claimant sustained a compensable injury in December 2000. He attained maximum medical improvement in 2002, but was left with a permanent impairment rating. When he moved to Lima, Peru, the Employer/Carrier (E/C) authorized a doctor of 'Claimant’s choice, Dr. Linares: Despite this, in 2014, Claimant filed a petition for benefits (PFB) seeking authorization of Dr. Linares, and the JCC denied the claim as moot because Dr. Linares was already authorized and had never been deauthor-ized.* However, Dr. Linares was uncooperative with the Florida workers’ compensation system; in the words of the JCC, he “has demonstrated his disinterest in being paid through workers’ compensation by hanging up on the adjuster and by failing to follow up with her,” and “his actions speak to his express desire not to cooperate with the workers’ compensation system.” The JCC in that order explained that Dr. Linares remained authorized even though he had chosen to be paid for that treatment via Peru’s alleged “socialized *167medicine scheme” rather than via Florida workers’ compensation.
In July or August of 2015, Dr. Linares advised Claimant that he was (again in the JCC’s words) “henceforth unwilling to treat” Claimant. Although the reason he was unwilling to treat is not entirely clear, there is no evidence or suggestion from the E/C that he had opined that no further treatment was medically necessary. In fact, the E/C seemed to believe that Dr. Linares was still treating Claimant (the E/C was unable to depose him). Accordingly, when Claimant filed a PFB seeking “authorization of an orthopedist to replace Dr. Linares,” the E/C argued that Dr. Linares did not need replacing because he was continuing to treat Claimant, The E/C did not argue, at any time below,' that further treatment was not medically necessary. Yet, in the order now appealed, the JCC denied the claim on the sole ground that Claimant had not proven medical necessity. The JCC rejected the argument the E/C had made, finding instead that treatment with Dr. Linares is no longer “a viable option” given his noncooperation and refusal to treat.
We agree with Claimant that the JCC erred in deciding this case based on medical necessity—a defense that was not raised. This Court has held that a JCC’s sua sponte denial of a claim based on a defense not raised at all by the E/C below is a violation of the claimant’s right to due process. See Rucker v. Just Brakes, 75 So.3d 807 (Fla. 1st DCA 2011). Moreover, in the specific factual circumstances presented by this case, the E/C waived a challenge to medical necessity by not asserting it in the pretrial stipulation. Cf. Marin v. Aaron’s Rent To Own, 53 So.3d 1048, 1050 (Fla. 1st DCA 2010) (“Here, in response to Claimant’s PFB for authorization of a physiatrist -in Colombia, the E/C not only failed to raise the medical necessity defense in the pretrial statement, but took the additional and affirmative step of entering into a stipulation to provide a physiatrist in Colombia, obviating any defense or requirement of further proof.”). And finally, the E/C’s insistence that Dr. Linares was authorized was effectively a stipulation to medical necessity, rendering proof of medical necessity unnecessary. Cf. Franklin v. Riviera Beach Fire Rescue, 132 So.3d 1219 (Fla. 1st DCA 2014) (holding JCC violated due process and abused his discretion in denying benefits for failure to1 prove medical necessity where E/C had conceded medical necessity).
Given the JCC’s uncontested, finding that treatment with Dr. Linares is no longer a viable option, we reverse and remand with instructions for entry of an order awarding authorization of an orthopedist to replace Dr. Linares.
REVERSED and REMANDED with instructions.
ROBERTS, C.J., MAKAR and JAY, JJ„ CONCUR.
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Marine Max, Inc. v. Blair, 268 So. 3d 839 (Fla. 1st DCA 2019)…Fla. Stat. According to Marine Max, because it had no agreement with Yunis, it was left with only one real option: to provide medically necessary care—as section 440.13(2)(a) required—by authorizing someone else. Cf. Leon v. CSB Services, Inc., 219 So. 3d 166, 167 (Fla. 1st DCA 2017) (holding that authorization of new doctor is required when previous doctor “is no longer a viable option”). The JCC agreed with Blair and held that Marine Max’s actions were “tantamount to a unilateral deauthorization.”…
Authorities Cited
- Marin v. Aaron's Rent TO OWN and Broadspire, 53 So. 3d 1048 (Fla. 1st DCA 2010)
- Tracie Rucker v. Just Brakes and The Hartford, 75 So. 3d 807 (Fla. 1st DCA 2011)
- Franklin v. Riviera Beach Fire Rescue & Gallagher Bassett Servs., 132 So. 3d 1219 (Fla. 1st DCA 2014)