Per a recent post, I just completed my first oral argument on a recent appeal in front of the First DCA.  As I predicted, the Court affirmed the JCC’s opinion, per curium, meaning they disagreed with my argument but did not offer a written opinion as to why.  

Which is. . . ok, I guess. 

While I would love to read their reasoning for the affirmed order, I understand the decison to not write an opinion.  The facts of the case were complex and this appeal was not the best one to address the issue of unauthorized physician testimony, a rule that is firmly established in both statute and case law.

But, I think it is important to use this PCA as an opportunity to discuss the issue of unauthorized physician testimony since it is becoming an increasing issue in more and more of my cases.

If a doctor is not an IME, an EMA, or an authorized physician, her medical opinion may not be considered by the Judge when determining disability or compensability.  The purpose behind this rule, s. 440.13(5)(e), is so that credibility is established to qualified physicians who are certified by the State to treat Workers’ Compensation patients.  This way, not anyone with a piece of paper framed on a wall can walk into court and testify.  They must be a “certified health care provider” as defined by the statute.

However, from an E/C point of view, an unauthorized physician can be useful.  There is nothing in the statute that says these doctors cannot testify to facts.  For example, if a Claimant testifies that he never injured his back before his current W/C accident, but tells you the name of his personal doctor, and that doctor testifies about Claimant’s long history of back pain, then naturally you want that evidence to be considered by the Judge.

In my case, I believed the testimony of the unauthorized physician supported a fraud case.  Obviously, the Judge disagreed, but I motioned for the Court to only consider the fact evidence in the doctor’s testimony.  The big legal irony here is that the evidence I wanted in ended up doing me in. 

Another reason to be aware of unauthorized physicians is that Claimant’s look to get these doctors authorized per the 5 day rule, as discussed in a recent post.  Through the 5 day rule, a Claimant can bring in long treating doctor who might opine that pre-existing conditions were aggravated by the new accident.  And, that is a whole hornet’s nest you do not want to step in.

But, don’t let this claim dissuade adjusters from investigating unauthorized providers.  They can provide useful information about Claimant’s past–or present–to assist in the defense of your claim. 

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