Admissibility of medical opinions

This letter will serve to update you on a recent decision published by the First District Court of Appeal (First DCA) in Russell v. Orange County Public Schools Transportation and United Self-Insured. In this decision, the First DCA addressed the issue of the admissibility of medical opinions.

In this case, the Claimant challenged the JCC's refusal to order an expert medical advisor (EMA) based on the disagreement of two medical opinions. In her request for an EMA, Claimant had cited a disagreement between two orthopedic providers, Dr. Richard Smith and Dr. Jeffrey Rosen. Dr. Rosen, Claimant's later authorized orthopedic provider, opined in his deposition that Claimant's accident was not the major contributing cause of her current knee condition. Dr. Smith testified to the contrary. Still, the JCC denied the request for an EMA, finding "the foundational support for the conflict did not exist because the opinion that reportedly established the conflict came from a physician whose opinion could not be accepted pursuant to section 440.13(5)(e)." This, as Dr. Smith had apparently been deauthorized.

The Court reversed the JCC's decision to exclude the testimony of Dr. Smith (and, therefore, failure to order an EMA as required by the statutes). It first noted that section 440.13(5)(e) does provide that opinions of authorized treating providers are admissible in proceedings before the JCC. The Court then noted the definition of "authorized treating provider" as being a "provider who has been authorized by an E/SA." The issue of whether a de-authorized provider could provide opinion testimony was a question of first impression, however.

The Court then turned its analysis to statutory construction, first noting that a plain reading of the statute did not offer any guidance. Consequently, it focused on the legislative intent behind section 440.13(5)(e). Section 440.13 was amended in 1993 to include subsection (5)(e), limiting medical opinion testimony to EMAs, authorized providers, and IMEs. Section 440.015, Florida Statutes, was also amended at that time to include language pertaining to the nature of workers' compensation as being self-executing so as to ensure a prompt and cost-effective delivery of payments and benefits to the injured worker.

Based on its understanding of the legislative intent behind section 440.13(5)(e), the Court found that "interpreting [the statute] to preclude the admission of a de-authorized physician's medical opinion would contravene the purposes of both section 440.13(5)(e) and chapter 440." The Court specifically noted that such an interpretation would allow an E/SA to de-authorize a physician in order to preclude his/her opinion from coming into the record, or a claimant to request a one-time change. After all, it was this type of "doctor shopping" that culminated in the 1993 amendments in the first place. (The Court cited The Governor's Worker's Compensation Reform Proposal for this proposition.) Finally, the Court noted that the "gamesmanship" of last minute de-authorizations and authorizations would defeat the purpose outlined in section 440.015, as same could cause meaningful delays in petition for benefits hearings and hinder a prompt determination of whether the claimant is due payments and/or services.

Based on the foregoing, and the "absurd results" potentially resulting from the JCC's interpretation thereof, the Court found that the JCC erred in excluding Dr. Smith's testimony, and in failing to order an EMA as required by the statutes.

The facts of this case are somewhat unclear, in that it is impossible to tell why Dr. Smith was deauthorized. As you know, there are numerous instances wherein a doctor might be deauthorized, e.g., a one-time change, over-utilization, or a second opinion. Still, this case appears to stand for the proposition that deauthorization for any number of reasons will not render the deauthorized physician's opinions inadmissible. I would note, however, that this decision is not final, as both parties have 15 days from the April 20, 2010 date of issuance of the decision to move for re-hearing.

Kristen L. Magana