DANE HIDDEN,

Appellant,

v.

DAY &

ZIMMERMAN/FLORIDA

POWER & LIGHT

CO./BROADSPIRE,

Appellees.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

CASE NO. 1D16-1045

_____________________________/

Opinion filed October 7, 2016.

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

Robert D. McAliley, Judge.

Date of Accident: May 22, 2015.

James T. Walker of Hayskar, Walker, Schwerer, Dundas & McCain, P.A., Ft. Pierce,

for Appellant.

William H. Rogner and Derrick E. Cox, Winter Park, for Appellees.

PER CURIAM.

In this workers’ compensation case, Claimant argues that the Judge of

Compensation Claims (JCC) erroneously (1) excluded certain medical evidence, and
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(2) failed to rule on his entitlement to indemnity benefits. We affirm the second

issue without further comment, and we affirm the first issue for the reasons that

follow.

Factual and Procedural Background

Claimant alleged that he developed a sudden pain in his neck when opening

heavy lids on equipment lockers at work on May 22, 2015. Although Claimant lost

consciousness, no injury was readily observable. Claimant was transported by

ambulance to an emergency room, but the Employer/Carrier (E/C) did not authorize

this or any other medical care. The E/C did not accept any injury as compensable,

theorizing that Claimant’s neck pain was preexisting and not work-related.

Claimant subsequently saw two doctors that were not authorized by the E/C

to treat him: Dr. Brown, an orthopedic surgeon, and Dr. Estes, a physical

rehabilitation and pain management specialist. Dr. Brown diagnosed Claimant with

“whiplash-type syndrome” and cervicalgia (neck pain), and prescribed physical

therapy and medication. Dr. Estes also diagnosed Claimant with cervicalgia—as

well as a sprain of the cervical spine and a small posterior C5-C6 disc protrusion—

and administered cervical epidural steroid injections. Both Drs. Brown and Estes

opined that Claimant'ssymptoms were caused by the work-related incident, although

Dr. Estes added that the disc protrusion was not necessarily work-related.
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Claimant thereafter filed a petition for benefits seeking, among other things,

a determination that the injuries diagnosed by Drs. Brown and Estes are

compensable. At the hearing before the JCC, Claimant submitted the depositions of

Drs. Brown and Estes in support of the petition. The E/C objected to the medical

opinions in the depositions based on section 440.13(5)(e), Florida Statutes (2014),

which prohibits the admission of medical opinion evidence in workers’

compensation proceedings from anyone other than an authorized treating physician,

independent medical examiner (IME), or expert medical advisor (EMA). Claimant

responded that the opinions of Drs. Brown and Estes were admissible because the

two doctors were authorized by operation of law pursuant to section 440.13(2)(c),

which permits an injured employee to obtain so-called “self-help” at an E/C’s

expense when the E/C “fails to provide initial treatment . . . after request by the

injured employee.”

The JCC excluded the medical opinions in the depositions, reasoning that

because the opinions were not admissible ab initio, they could not establish their

own admissibility by their content—i.e., the opinions could not “bootstrap”

themselves into evidence. And, because without the opinions of Drs. Brown and

Estes there was no medical evidence to establish that Claimant's injuries were workrelated, the JCC denied the petition seeking compensability and all other benefits

sought by Claimant.
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This appeal follows.

Analysis

Section 440.13(5)(e), by its plain language, excludes from workers'

compensation proceedings the medical opinions of any doctor (other than IMEs and

EMAs) who has not been authorized by the employer/carrier. And section

440.13(2)(c), by its plain language, permits self-help (and thus authorization by

operation of law) only “if the initial treatment or care is compensable and medically

necessary.” Thus, the medical opinions of an unauthorized self-help doctor are not

admissible unless and until it is established—by other admissible evidence and

medical opinions—that the care rendered by the self-help doctor was compensable

and medically necessary. See Miller Elec. Co. v. Oursler, 113 So. 3d 1004, 1009

(Fla. 1st DCA 2013) (explaining that “a claimant seeking . . . to introduce medical

opinions ordinarily excluded by section 440.13(5)(e), can establish the factual

circumstances of the care at issue with 'fact-purposes only' evidence from the

provider of that care, but must also present medical opinions from another source . .

. to establish . . . the compensability and medical necessity . . . of the care at

issue”); Parodi v. Fla. Contracting Co., 16 So. 3d 958, 962 (Fla. 1st DCA 2009)

(“The employee retains the burden . . . to establish that he . . . obtained care that is

compensable, reasonable, and medically necessary.”). The self-help doctor's

opinion that the care was compensable and medically necessary cannot "bootstrap"
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itself into evidence. See Oursler, 113 So. 3d at 1009 (“A claimant cannot use

medical opinion evidence barred by section 440.13(5)(e) to ‘bootstrap’ itself—or

other medical opinions from the same source—into evidence. To permit such

bootstrapping would contravene the legislative intent of section 440.13(2)(c) . . . .”).

Claimant asserts that this court’s prior cases on bootstrapping do not apply

here because those cases did not involve the denial of “initial”

care. See, e.g., Oursler, supra; Romano v. Trinity Sch. for Children, 43 So. 3d 928

(Fla. 1st DCA 2010); Carmack v. Dep’t of Agric., 31 So. 3d 798 (Fla. 1st DCA

2009); Boggs v. USA Water Ski, Inc., 18 So. 3d 610 (Fla. 1st DCA

2009); Parodi, supra. Claimant is correct that, in each of those cases, the

employer/carrier involved provided at least some authorized care for some

condition, but Claimant is mistaken about the law. The requirements in section

440.13(2)(c) apply equally whether the care rendered by the self-help doctor is

“initial” care (as contemplated by the plain language of the statute) or whether it is

care obtained after an employer/carrier that initially accepted compensability later

denies care requested by the claimant (as in Parodi and the other cases cited above). 

Indeed, no case has ever suggested—nor could the statute be reasonably construed

to mean—that a self-help doctor is authorized by operation of law merely because

that doctor provides “initial” treatment or care that he or she believes is

compensable.
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In reaching this conclusion, we have not overlooked Claimant's argument that

excluding the self-help doctor’s opinions from evidence where, as here, the

employer/carrier refused to authorize any treatment or care leaves the employee

without a remedy and undermines the self-executing nature of the workers'

compensation system. However, we reject this argument because, asthe E/C pointed

out in its answer brief, there are a number of ways that an employee in Claimant’s

situation could proceed. For example, the employee could designate the self-help

doctor as his or her IME, thereby making the doctor’s opinion admissible under

section 440.13(5)(e), or the employee could petition for an advance under section

440.20(12) to pay for another doctor who could be designated as an IME that could

be used establish the compensability prerequisite for the admission of the self-help

doctor’s opinions.

Conclusion

For the reasons stated above, the JCC's order is AFFIRMED.

LEWIS, WETHERELL, and JAY, JJ., CONCUR.