07-2957 PROTOCOL COMMUNICATIONS, INC. AND CNA CLAIMPLUS v. LENORE BERRY ANDREWS

SUPREME COURT CASES

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State: Florida

Court: Florida First District Court

Docket No: 07-2957

Case Date: 09/26/2008

Preview: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

PROTOCOL COMMUNICATIONS, INC. and CNA CLAIMPLUS, Appellant,

CASE NO. 1D07-2957 v. LENORE BERRY ANDREWS, Appellee. _____________________________/

Opinion filed September 26, 2008. An appeal from an order of the Judge of Compensation Claims. Diane B. Beck, Judge. Cindy R. Galen, of Eraclides, Johns, Hall, Gelman, Johannessen & Kempner, L.L.P., Sarasota, for Appellant. John P. Brooks, Orlando, and Bill McCabe, of Shepherd, McCabe & Cooley, Longwood, for Appellee.

ALLEN, J. The employer challenges a workers' compensation order by which medical and temporary disability benefits were awarded. Among other issues, the employer asserts that medical care should not have been awarded with a doctor who was designated for

the claimant's independent medical examination. However, the employer did not contest that designation and the doctor's care was properly awarded under sections 440.13(5)(a) and 440.13(2)(c), Florida Statutes. As found by the judge of compensation claims, the claimant sustained a compensable injury upon being exposed to chemical fumes in the workplace. The employer initially accepted compensability and provided benefits, including medical care. But the employer thereafter discontinued such benefits, including medical, while maintaining that all appropriate benefits had been provided. Despite the claimant's continued and repeated requests for further medical care, the employer did not furnish other medical and the claimant then obtained such care on her own. The doctor who was thereafter treating her was eventually designated by the claimant as her independent medical examiner, and in that capacity was allowed to testify at a hearing on a claim for additional benefits. An expert medical advisor also testified at the hearing, and those doctors indicated that the claimant's ongoing problems were related to the industrial injury and required further medical care. The judge accepted that evidence and awarded such care with the treating doctor who had been designated for the independent medical examination. Referring to section 440.13(5)(a), the employer contends that when the treating doctor was designated for the examination he could no longer provide treatment. In 2

particular, the employer relies on one sentence in the statute which states that "The independent medical examiner may not provide followup care . . . ." That language was inserted into the statute by an amendment which also made other changes, including a revision to earlier language which had unequivocally allowed a treating doctor to be an independent medical examiner. See ch. 2003-412,

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