         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                          No. 1D17-3339
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HANSEN AND ADKINS AUTO
TRANSPORT and GALLAGHER
BASSETT SERVICES,

    Appellants,

    v.

JAMES MARTIN,

    Appellee.
                  _____________________________


On appeal from an order of the Judge of Compensation Claims.
William R. Holley, Judge.

Date of Accident: September 14, 2015.

                       December 10, 2018


PER CURIAM.

     In this workers’ compensation case, the Employer and Carrier
appeal the Judge of Compensation Claims’ order awarding the
injured worker retroactive authorization of surgery performed by
an unauthorized provider. In the order, the JCC found that the E/C
wrongfully denied a recommendation for cervical fusion surgery by
an authorized provider. In addition, the order concluded that a
different surgical procedure, completed later by an unauthorized
provider, was medically necessary to treat the compensable
workplace injury. On appeal, the E/C raise issues of causation and
medical necessity. We conclude that the originally recommended
surgery was not wrongfully accepted by the JCC. However, we
reverse as to the different surgery actually performed by the
unauthorized provider in this case, because the JCC relied on
inadmissible medical opinion evidence to find the surgery
medically necessary.

                              Facts

     On September 14, 2015, Claimant sustained a compensable
workplace injury to his neck. Although a cervical MRI scan
performed soon after the injury revealed significant preexisting
degenerative changes, the E/C provided medical care for his neck
pain including pain management, injections, and a surgery
evaluation by Dr. Ero, an authorized orthopedic surgeon. When Dr.
Ero recommended cervical fusion surgery at multiple levels, the
E/C obtained an independent medical examiner’s opinion that
Claimant’s workplace injury was a strain/sprain only and was not
the major contributing cause of any condition for which the fusion
surgery was recommended. Based on this opinion, the E/C denied
Dr. Ero’s request for authorization of the recommended surgery.

     In his initial petition for benefits, Claimant sought
authorization of the cervical fusion surgery recommended by Dr.
Ero. But before that issue was tried, he went to an unauthorized
provider and had a different, less intrusive surgical procedure.
Claimant subsequently amended his petition for benefits to
include a claim for the surgical procedure that had been
performed. Although Claimant eventually abandoned the claim for
the recommended cervical fusion surgery, the E/C raised a major
contributing cause defense to both claims.

     In the order now on appeal, the JCC correctly noted that an
injured worker may obtain wrongfully denied medical treatment
at the expense of the E/C under the self-help provisions of section
440.13(2)(c), Florida Statutes (2015). See, e.g., Parodi v. Fla.
Contracting Co., 16 So. 3d 958, 962 (Fla. 1st DCA 2009) (holding
“where section 440.13(2)(c) applies, the [JCC] has the statutory
authority to authorize a doctor for care provided during the period
of wrongful denial”). In first determining that the E/C here
wrongfully denied surgery, the JCC rejected the E/C’s causation
defense and found that Claimant satisfied his burden of showing
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that the workplace injury is the major contributing cause of the
need for surgery as required by section 440.09(1), Florida Statutes
(2015). The JCC then found that the surgery actually performed
by the unauthorized self-help provider was sufficiently similar to
that recommended by Dr. Ero and was medically necessary to treat
the compensable injury.

                            Analysis

     In finding the requisite causation, the JCC determined that
the E/C accepted compensability of the whole of Claimant’s
cervical condition—including the preexisting degenerative
changes—by providing benefits and by failing to timely deny
compensability for any preexisting condition. The JCC found no
evidence of a break in the chain of causation and also expressly
accepted Dr. Ero’s opinion regarding the major contributing cause.
To the extent that the JCC determined that the compensable
workplace injury was the major contributing cause of the cervical
condition and the need for the surgery recommended by Dr. Ero,
we find no reversible error. The record supports the JCC’s
conclusion that the E/C wrongfully denied the surgery
recommended by Dr. Ero.

     But Claimant’s burden under the self-help provision of section
440.13(2)(c) was to show that surgery he actually received—a
different surgery than Dr. Ero recommended—was compensable,
reasonable, and medically necessary. See Parodi, 16 So. 3d at 962.
On this point, he presented no medical testimony concerning the
cause and medical necessity of the less invasive surgery received
from the unauthorized provider. Dr. Ero expressly testified that he
could not state that this surgery was medically necessary. And the
JCC only cited evidence of medical necessity based on the medical
records from the self-help provider. This was error. Under section
440.13(5)(e), only medical opinions from authorized providers,
independent medical examiners, and expert medical advisors are
admissible in workers’ compensation proceedings. This Court has
held that “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.”
Hidden v. Day & Zimmerman, 202 So. 3d 441, 442-43 (Fla. 1st

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DCA 2016) (first citing Miller Elec. Co. v. Oursler, 113 So. 3d 1004,
1009 (Fla. 1st DCA 2013); then citing Parodi, 16 So. 3d at 962)
(holding that a self-help doctor’s opinion on compensability and
medical necessity cannot “bootstrap” itself into evidence). Here,
the JCC appeared to “bootstrap” records of the self-help provider,
because no other admissible evidence exists that Claimant’s
surgery was compensable and medically necessary. Without this
evidence, Claimant failed to meet his burden of proof. We must,
therefore, reverse the order below.

MAKAR, OSTERHAUS, and JAY, JJ., 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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Barbara K. Case of Barbara K. Case, P.A., North Palm Beach, for
Appellants.

Cynthia L. Denker of Harrell & Harrell, P.A., Jacksonville, for
Appellee.




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