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ASCENSION BENEFITS & INSURANCE SOLUTIONS OF FLORIDA and City of Orlando, Appellants, v. Russell ROBINSON, Appellee.

CASE NO. 1D16–5853

Decided: December 27, 2017

Richard B. Robbins and Theodore N. Goldstein of Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A., Orlando, for Appellants. Charles H. Leo of Law Offices of Charles H. Leo, P.A., Orlando, and Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee, for Appellee.

In this workers' compensation appeal, the Employer/Carrier (E/C) raise two issues on appeal and Claimant raises three on cross-appeal. We affirm all issues with the exception of the award of surgery challenged by the E/C, which we reverse as discussed below.


Claimant's compensable injuries came about as a result of repetitive trauma involving both hands and both elbows. In 2016 a disagreement arose between Claimant's authorized treating physician and Claimant's independent medical examiner (IME) as to the nature of the treatment needed to address Claimant's compensable injuries. Claimant filed a motion outlining that disagreement, which resulted in the appointment of an expert medical examiner (EMA). Among other questions posed to the EMA, the JCC asked that he opine as to what reasonable and medically necessary treatment was needed for Claimant's compensable hand and upper extremity injuries.

The JCC, in the order under review, found that Dr. Rayhack, the EMA, “agreed that surgery on the residual lateral epicondylitis and for release of the trigger fingers would be reasonable,” and “that there is no clear and convincing evidence to reject the medical opinions of Dr. Rayhack with regards to the reasonableness of the requested surgeries being awarded.” Alternatively, the JCC found that Dr. Rayhack's opinion regarding surgical releases, when considered in its totality, was inconclusive. Nevertheless, the JCC found, based on the opinions of both Dr. Rayhack and Claimant's IME, that the surgical releases of the elbow and trigger fingers were reasonable and medically necessary. The E/C maintain on appeal that, in awarding the surgeries, the JCC misinterpreted the EMA's opinion. Rather, argue the E/C, the EMA's opinion was that the surgeries were not necessary nor recommended.


Where the JCC's findings are called into question as not consistent with the evidence, this court reviews for abuse of discretion. See Ullman v. City of Tampa Parks Dep't, 625 So.2d 868, 873 (Fla. 1st DCA 1993) (“The role of this court must be to guard against fanciful or arbitrary abuse of discretion in workers' compensation cases, and we will continue to do so by scrutinizing JCC findings under the lift of the basic rule requiring [CSE] in support of such findings.”). See also Lemmer v. Urban Elec., Inc., 947 So.2d 1196, 1199 (Fla. 1st DCA 2007) (reversing JCC's denial of benefits based on findings not consistent with record). “A court abuses its discretion when no reasonable person could reach the same conclusion.” Verkruysse v. Fla. Carpenters Reg'l Council, 27 So.3d 157, 159 (Fla. 1st DCA 2010).

Under paragraph 440.13(2)(a), Florida Statutes (2008), an injured employee is entitled to “such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require.” Under paragraph 440.13(9)(c), Florida Statutes (2008), an EMA must be appointed when “there is a disagreement in the opinion of the health care providers.” Further, “[t]he opinion of the [EMA] is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the [JCC].” Id.

Here, the JCC found that Dr. Rayhack testified that surgery for the residual lateral epicondylitis and for release of trigger fingers would be “reasonable.” Reasonableness is not, however, the only standard to apply when awarding medical treatment. As noted above, paragraph 440.13(2)(a) specifically requires that the treatment be “medically necessary.” Thus, it is not enough that the treatment be “reasonable,” it must be “medically necessary,” and it was Claimant's burden to prove medical necessity. See Morrow v. Sam's Club, 17 So.3d 763, 764 (Fla. 1st DCA 2009) (explaining that entitlement to all medical treatment is governed by paragraph 440.13(2)(a), “which requires a showing of medical necessity”). See also Trevino v. Dep't of Revenue, 82 So.3d 930, 932 (Fla. 1st DCA 2011) (“Generally, it is the claimant's burden to prove entitlement to any requested benefit.”).

Importantly, Dr. Rayhack did not opine that the surgeries were medically necessary. To the contrary, he made it clear that he was not recommending them. In his report, he stated that he “would not recommend additional upper extremity surgery as I feel it is unlikely that this patient would benefit from additional hand, wrist, or elbow surgery.” On direct examination during his deposition he explained his concern with trigger finger surgery;  specifically, it had the possibility to make Claimant worse and was unlikely to offer Claimant any relief. He had similar concerns about the elbow surgery, explaining that surgery is rarely done and only for refractory cases;  rather, it is almost always treated conservatively. On cross-examination, Dr. Rayhack opined that no further surgeries on the relevant nerves were recommended, although he did agree that the trigger finger releases were “reasonable” if some other physician wanted to do them.

The JCC's error in relying on “reasonableness,” and ignoring medical necessity, both in his primary analysis and in his alternative analysis, is that the JCC failed to accord the EMA's opinion its due—that it is presumptively correct. Further, the JCC failed to articulate clear and convincing evidence to the contrary. The doctor was asked whether there was any treatment he would recommend. He responded that he did not recommend further upper extremity surgeries. His acknowledgement that another physician might perform such a surgery is not clear and convincing evidence so as to call his opinion into question. See Travelers Ins. v. Armstrong, 118 So.3d 865, 866 (Fla. 1st DCA 2013) (reversing JCC's rejection of EMA's opinion for failure to articulate clear and convincing reasons for doing so where one reason given was that “JCC found that it was ‘notable’ that the EMA avoided answering a question about whether Claimant was a surgical candidate. However, the record shows that the EMA stated in his report that he would not recommend surgery for Claimant and he reaffirmed this statement during this deposition”).

Because the JCC failed to apply the correct standard in assessing Dr. Rayhack's opinion, and further failed to clearly articulate a reason for rejecting the EMA's opinion, he abused his discretion in awarding the surgeries, and this issue is reversed.

Accordingly, we AFFIRM in apart, and REVERSE in part, and REMAND for proceedings consistent with this opinion.



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