FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
of Accident: December 19, 2000.
appeal from an order of Judge of Compensation Claims. Gerardo
William F. Souza of the Law Offices of William F. Souza,
P.A., North Miami Beach, for Appellant.
B. Griffis of the Law Office of Jones, Hurley & Hand,
P.A., Orlando, for Appellees.
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.
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
deauthorized.[*] 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 medicine scheme" rather than
via Florida workers' compensation.
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.
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 to prove medical necessity where E/C had
conceded medical necessity).
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.
and REMANDED with instructions.
ROBERTS, C.J., MAKAR ...