This April 24, 2013 1DCA opinion affirmed in part and reversed in part Judge Portuallo's JCC decision.
in this case, the claimant argued that the JCC erred by:
(1) improperly shifting onto Claimant the burden to prove the compensable injury was the major contributing cause (MCC) of his disability and need for surgery;
(2) finding that the medical services at issue did not constitute “emergency care or services,” and that lack of notice to the Employer/Carrier (E/C) precluded authorization or payment; and
(3) finding the opinion testimony from the emergency room physician, Dr. Acebal, is not admissible pursuant to the “self-help” provisions contained in chapter 440.
The 1DCA reversed on the first two grounds raised and affirmed on the last.
As background, the Claimant injured his lower back in 2006. the Claimant declined surgical treatment, and in September 2006, Dr. Christopher Brown placed the Claimant at MMI with a 6% impairment rating. From 2006 through 2010, the Claimant returned to Dr. Brown on several occasions due to recurrent low back pain. In December 2010, a recommendation was made for epidural steroid injections. Before receiving the second injection, he developed significant back and leg pain and had difficulty standing.
On March 19, 2011, Claimant was admitted to and treated in the emergency room at
The same day, Dr. Acebal contacted Dr. Brown and offered to transfer Claimant’s surgery to Dr. Brown. Dr. Acebal advised Dr. Brown that Claimant needed surgery because he had a “huge disc.” According to Dr. Acebal, had Dr. Brown given any indication that he would have operated on Claimant “quite quickly” (meaning the next day), he would have transferred Claimant to Dr. Brown’s care.
Dr. Brown advised Dr. Acebal that if Claimant’s condition was emergent and required surgery, “he probably shouldn’t be transferred.” In deposition, Dr. Brown opined that if Claimant could have been transferred, as offered by Dr. Acebal, then the surgery would be “more of an elective type of thing” and “he really doesn’t need to be transferred,” because Claimant could be treated on an outpatient basis.
On March 22, 2011, Dr. Acebal performed surgery on Claimant at L5-S1.
On March 23, 2011, the E/C denied any future medical care based on the adjuster’s conversation with the workers’ compensation coordinator in Dr. Brown’s office. The adjuster was advised that Claimant had informed Dr. Brown’s office that “he was in the emergency room, an MRI had been done, and they were going to set him up for emergency surgery.”
The EC defended the denial “industrial accident not the MCC of temporary disability; industrial accident no longer the MCC of the current need for treatment as Claimant underwent surgery with an unauthorized physician; such surgery was unauthorized and did not constitute emergency care; carrier not placed on timely notice of alleged emergency care; and surgery not medically necessary or causally related to accident.”
At the JCC Merits Hearing, the JCC held that Dr. Acebal’s medical opinion was inadmissible because he was not an “authorized physician, independent medical examiner, or expert medical advisor”, and admitted the doctor’s deposition for “fact purposes only.”
The E/C presented deposition testimony of Dr. Brown that the compensable injury was not the MCC of Claimant’s surgery, but Dr. Brown could not determine the MCC, because he was unaware of any other potential causes of the Claimant’s need for treatment. Dr. Brown further testified that although he did not observe Claimant or his condition at the medical clinic, the Claimant’s surgery was not performed on an emergency basis.
The 1DCA indicated that because the injury requiring emergency care and services was a compensable workplace injury (and here, there is no dispute over the fact that the services were medically necessary), the emergency services provided by Dr. Acebal were also “compensable” under section 440.13(3)(b).
The 1DCA concluded that based on the above conclusions, that were established without reliance on Dr. Acebal’s medical opinion testimony, that Dr. Acebal became an authorized treating provider for the purposes of section 440.13(5)(e), Thus, Dr. Acebal’s medical opinion testimony was admissible in the proceedings before the JCC.
In light of Dr. Acebal’s medical opinion testimony, which was not rebutted or impeached, the 1DCA concluded that the surgery performed by Dr. Acebal was performed to treat an emergency medical condition.
Comments
Post a Comment