FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-3229

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SHARON VARRICCHIO,

Appellant,

v.

ST. LUCIE COUNTY CLERK OF

COURTS and ASCENSION

INSURANCE,

Appellees.

_____________________________

On appeal from an order of the Judge of Compensation Claims.

Keef F. Owens, Judge.

Date of Accident: September 26, 2013. 

April 29, 2019

M.K. THOMAS, J.

Sharon Varricchio (“Claimant”) appeals a workers’

compensation order denying her claim for temporary disability 

benefits. We affirm but write to address retroactive assignment of 

maximum medical improvement (“MMI”) and the claim that 

section 440.13(4)(c), Florida Statutes (2013), allowing ex parte 

conferences, violates the privacy clause of the Florida 

Constitution.

 
2

I. Facts

In 2013, the Claimant injured her back moving boxes. The E/C 

accepted compensability and authorized medical care with two 

doctors—Drs. McCollom, a neurosurgeon, and Weidenbaum, a

pain management physician. Dr. McCollom placed the Claimant 

at neurosurgical MMI and released her care to Dr. Weidenbaum.

Dr. Weidenbaum performed a lumbar rhizotomy1 in June 

2015. The operative report detailed: “The patient was instructed to 

call us for follow-up within 2 weeks’ time.” However, the Claimant 

did not return to see Dr. Weidenbaum for almost a year. On that 

return visit, the Claimant reported 100% pain relief following the 

rhizotomy until approximately two weeks prior to her return. In 

completing the DWC-25 form,2 Dr. Weidenbaum indicated that the 

Claimant had reached MMI but did not specify the specific MMI 

date in the field provided on the form. However, due to continued 

pain complaints, the Claimant underwent a second rhizotomy

shortly thereafter. She returned for a follow-up visit and reported 

no relief from the procedure. Dr. Weidenbaum indicated on the 

DWC-25 form that the Claimant was at MMI but again did not 

specify a date or address permanent impairment rating. 

On November 30, 2016, the Claimant returned to Dr. 

Weidenbaum and reported no improvement. Physical therapy and 

medications were prescribed. At this visit, Dr. Weidenbaum fully 

completed the DWC-25 form to include a specific MMI date to 

correspond with the date of the visit with a 5% permanent 

 1 A rhizotomy is a surgical procedure to sever nerve roots in 

the spinal cord. The procedure effectively relieves chronic back 

pain and muscle spasms.

2 Form DFS-F5-DWC-25 (“DWC-25”) has been adopted by the 

Florida Division of Workers’ Compensation in Rule 69L-7.602, 

Florida Administrative Code, as the required reporting form for 

physicians to recommend medical treatment/services and report 

the medical status of the injured employee to insurers/employers,

including the establishment of MMI and assignment of a 

permanent impairment rating. 
3

impairment rating and no work restrictions. Previously, he had 

assigned essentially light duty restrictions.

Upon receiving the impairment rating, the E/C began paying

permanent impairment benefits (“IBs”) pursuant to section 

440.15(3), Florida Statutes (2013). The E/C then filed the required 

DWC-4 form3 giving notice of the Claimant’s change of status and 

identifying the MMI date as November 30, 2016.

The Claimant filed a petition for benefits (PFB) seeking 

temporary total disability (TTD) and/or temporary partial 

disability (TPD) benefits from September 26, 2013, and continuing.

The E/C asserted that no TTD/TPD benefits were due as the 

Claimant had reached MMI, among other defenses. 

At deposition, Dr. Weidenbaum testified that the Claimant 

was likely at MMI after the initial rhizotomy performed on June 

10, 2015 and that he would have placed the Claimant at MMI 

sooner had she, as instructed, returned within a few weeks after 

the procedure and reported no pain. According to Dr. Weidenbaum, 

the second rhizotomy would not necessarily change the MMI date 

as exacerbations of pain are anticipated. He classified the 

medication and physical therapy as palliative in nature and, 

therefore, did not affect MMI status. Dr. Weidenbaum identified 

questionnaires he completed and signed in April and June 2017

(the latter at an ex parte conference with an E/C representative), 

in which he retroactively assigned the Claimant’s MMI date to be 

June 30, 2015, and that the Claimant was capable of performing 

her job duties.

The Claimant testified at the merits hearing. She denied ever 

being advised, orally or in writing, by Dr. Weidenbaum or his staff 

that she was to return to him two weeks after the rhizotomy. 

Furthermore, she denied being provided copies of the DWC-25 

forms in which Dr. Weidenbaum had placed her at MMI. She 

 3 Form DFS-F2-DWC-4 (“DWC-4”) has been adopted by the 

Florida Division of Workers’ Compensation in Rule 69L-3.025, 

Florida Administrative Code, as the required reporting form for 

reporting changes in medical and indemnity status.
4

learned she was at MMI in November 2016 when the claims 

adjuster advised her that IBs were being initiated.

Following a merits hearing, the JCC entered a Final Order 

framing the determinative issue as “the correct MMI date.”

Because he concluded the Claimant reached MMI on June 30, 

2015, the claim for TTD/TPD benefits was denied. The Claimant 

argues that the JCC erred when he accepted Dr. Weidenbaum’s 

retroactive MMI date of June 30, 2015, thus, precluding an award 

of TTD/TPD benefits for the claimed time period from November 

5, 2015 (date of termination from E/C), through November 30,

2016, the date the Claimant argues she reached MMI. 

II. Analysis

Claim for TTD/TPD

To the extent an issue turns on resolution of the facts, the 

standard of review is competent, substantial evidence (“CSE”); to 

the extent it involves an interpretation of law, the standard is de 

novo. See Benniefield v. City of Lakeland, 109 So. 3d 1288, 1290 

(Fla. 1st DCA 2013). 

In a workers' compensation proceeding, the JCC is the finder 

of fact who “may accept or reject an expert's testimony, or give it 

the weight deserved considering the knowledge, skill, experience, 

training, or education of the witness, the reasons given by the 

witness for the opinion expressed, and all other evidence in the 

case.” White v. Bass Pro Outdoor World, LP, 16 So. 3d 992, 994 

(Fla. 1st DCA 2009). This Court does not substitute its judgment 

for that of the JCC on matters supported by CSE. See Louisiana 

Pacific Corp. v. Harcus, 774 So. 2d 751, 757 (Fla. 1st DCA 2000).

The question of whether a claimant has reached MMI is a 

medical question that should be answered by medical experts. 

Lemmer v. Urban Elec., Inc., 947 So. 2d 1196, 1198 (Fla. 1st DCA 

2007). However, a JCC's reliance on a physician's opinion must be 

supported by the substance of that doctor’s medical testimony and 

not merely by the doctor's conclusion. Id.
5

Although the JCC acknowledged that Dr. Weidenbaum had 

suggested several MMI dates, he ultimately accepted Dr. 

Weidenbaum’s rationale for assigning the June 30, 2015, MMI 

date. The JCC acted within his discretion, and the only medical 

evidence before him related to the date of pain management MMI 

was from Dr. Weidenbaum. In the Final Order, the JCC stated:

It must be noted that there is no medical opinion 

regarding claimant’s MMI date other than that provided 

by Dr. Weidenbaum (with exception of Dr. McCollum’s 

opinion that the claimant previously reached MMI April 

20, 2015). This evidence is solely presented via Dr. 

Weidenbaum’s office notes, forms, and testimony. 

On appeal, the Claimant argues that the JCC’s acceptance of 

the June 30, 2015, MMI date constitutes error because Dr. 

Weidenbaum did not examine the Claimant on that day. As 

authority, the Claimant cites Peterson v. Georgia-Pacific 

Corporation, 510 So. 2d 1015 (Fla. 1st DCA 1987). However, 

Peterson is readily distinguishable as its holding was not that a 

doctor must have actually examined a patient on the date assigned 

for MMI or restrictions; instead, Peterson expresses only that there 

must be an evidentiary foundation to support such an assignment 

or the finding cannot be supported by CSE. Id. at 1018. Here, the 

only medical evidence before the JCC regarding MMI was that of 

Dr. Weidenbaum. As CSE exists to support the JCC’s 

determination, we are constrained to affirm. See Harcus, 774 So. 

2d at 757.

The Claimant relies on this Court’s prior decisions in Delgado 

v. Omni Hotel, 643 So. 2d 1185, 1187 (Fla. 1st DCA 1994), UtleyJames, Inc. v. Lady, 448 So. 2d 1191, 1193 (Fla. 1st DCA 1984), 

and Rolle v. Picadilly Cafeteria, 573 So. 2d 94, 97 (Fla. 1st DCA 

1991), for the proposition that the MMI assignment of June 2015 

is precluded because she continued to receive medical care with an 

expectation of some degree of further recovery. Again, the only 

medical evidence before the JCC regarding the pain management 

treatment and MMI was that of Dr. Weidenbaum who testified 

that all care after the initial rhizotomy was palliative in nature. 
6

The Claimant also argues that this case is “eerily similar” to 

Gauthier v. Florida International University, 38 So. 3d 221 (Fla. 

1st DCA 2010). She argues that the E/C’s failure to confirm MMI 

and acquire a permanent impairment rating prior to November of 

2016 precludes her acquisition of the benefits requested. To the 

extent that the Claimant seeks a broad expansion of the doctrine 

of equitable estoppel, her reliance on Gauthier is unpersuasive. To 

demonstrate estoppel, the Claimant must establish that: (1) the 

E/C misrepresented a material fact; (2) the Claimant relied on the 

misrepresentation; and (3) the Claimant changed her position to 

her detriment because of the misrepresentation. See, e.g., Deere v. 

Sarasota Cty. Sch. Bd., 880 So. 2d 825, 826 (Fla. 1st DCA 2004). 

We acknowledge that estoppel may be a viable bar to retroactive 

assignment of MMI or work restrictions under certain facts. 

However, as the Claimant here did not satisfy the required 

elements of estoppel or demonstrate supporting facts, her 

argument fails. 

Constitutional Right to Privacy

The attorney for the E/C had a one-on-one meeting with Dr. 

Weidenbaum shortly before he completed the April 2017 

questionnaire specifying the MMI date of June 30, 2015. The 

Claimant contends that section 440.13(4)(c)—the statutory 

provision giving the E/C the right to discuss Claimant’s medical 

condition with her doctors, outside of her presence and without 

prior notice—violates her constitutional right to privacy.

Our review of constitutional claims is de novo. See Medina v. 

Gulf Coast Linen Servs., 825 So. 2d 1018, 1020 (Fla. 1st DCA 2002). 

Under Article I, Section 23 of the Florida Constitution, “[e]very 

natural person has the right to be let alone and free from 

governmental intrusion into the person’s private life except as 

otherwise provided herein.” The right to privacy is a fundamental 

right, see Winfield v. Div. of Pari-Mutuel Wagering, Dep’t of Bus.

Regulation, 477 So. 2d 544, 547 (Fla. 1985), but there must first be 

evidence of a “legitimate” expectation of privacy, considering all 

the circumstances. See S & A Plumbing v. Kimes, 756 So. 2d 1037, 

1041 (Fla. 1st DCA 2000) (citing City of N. Miami v. Kurtz, 653 So. 

2d 1025, 1028 (Fla. 1995)).
7

Here, no legitimate expectation of privacy can be asserted. See 

Kimes, 756 So. 2d at 1041. In Kimes, this Court expressly held that 

section 440.13(4)(c) does not violate Florida’s constitutional right 

to privacy. 756 So. 2d at 1041. The Claimant suggests that Kimes 

no longer controls the constitutional question here in light of the 

supreme court’s decision in Weaver v. Myers, 229 So. 3d 1118 (Fla. 

2017), and the 2003 amendments to section 440.13(4)(c). In 

Weaver, the supreme court held that certain amendments to the 

medical malpractice law, which required the release of medical 

records and permitted ex parte secret interviews with medical 

providers, violated the appellant’s right to privacy. Id. at 1141-42 

(“Here, the constitutional protection operates in the specific 

context of shielding irrelevant, protected medical history and other 

private information from the medical malpractice litigation 

process.”). But the Weaver court distinguished Kimes, cited by way 

of analogy, on two grounds: first, that workers’ compensation, as a 

self-executing system, is substantially different from the 

adversarial and traditional actions in tort; and second, that “the 

only medical professional to be interviewed was explicitly hired for 

the purposes of workers’ compensation to evaluate the causal 

connection between the work performed and the injury.” Id. at 

1138.

The Claimant contends that the second distinction, noted in 

dicta in Weaver, is an acknowledgement by the supreme court that 

the Kimes decision turned on an injured worker’s lack of an 

expectation of privacy with regard to only those physicians 

authorized to treat under workers’ compensation law. The 

Claimant argues that section 440.13(4)(c) was substantially 

amended in 2003 and these amendments expand the scope of the 

law to permit E/Cs to obtain records from, and secretly meet with, 

all physicians, not just those authorized to treat workplace 

injuries. But this statutory change has had no effect on the 

Claimant, whose position is identical to that of the claimant in 

Kimes—exclusion from an ex parte meeting between the 

authorized treating physician and the E/C’s representative, where 

the discussion was limited to the workplace injury. 

As a consequence, the Claimant has not demonstrated injury 

that is anything more than conjecture. And, because Claimant has 

provided no support in the record that the recent amendments to 
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section 440.13(4)(c) violate her right to privacy causing ‘“an injury 

which is both real and immediate, not conjectural or hypothetical,’” 

her constitutional challenge must also fail. See Punsky v. Clay Cty. 

Bd. of Cty. Comm’rs, 60 So. 3d 1088, 1092 (Fla. 1st DCA 2011) 

(holding claimant’s constitutional argument must fail where 

evidence fails to show real and immediate injury) (quoting 

Montgomery v. Dep’t of Health & Rehab. Servs., 468 So. 2d 1014, 

1016 (Fla. 1st DCA 1985)). Accordingly, we find that section 

440.13(4)(c), as amended, does not violate the constitutional right 

to privacy. 

AFFIRMED. 

B.L. THOMAS, C.J., and ROWE, J., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for 

Appellant.

Gary M. Schloss of Hayes, Schloss & Alcocer, P.A., West Palm 

Beach, for Appellees.