While this is a first impression case, I believe most practitioners believed this to be true.  However, whether the JCC can consider a once authorized physician’s opinion does fall into the proverbial statutory gray area of section 440.13.

The key lesson to take from this ruling is that the Court preserves the Legislature’s desire to prevent “doctor shopping.”

In Russell v. Orange County Public Schools Transportation, the Claimant changed orthopedic doctors.  During litigation, the two doctors disputed Claimant’s diagnosis.  Due to the dispute, the Claimant wanted the JCC to appoint an Expert Medical Advisor (EMA) under s. 440.13(9)(c).  The JCC denied the motion for an EMA since the original doctor was now de-authorized to make way for the second ortho doctor.  The reasoning being that since the original doctor was de-authorized his testimony could not be admitted into evidence under s. 440.13(5)(e).  That statute only allows the admissibility of opinions from authorized doctors, EMA’s, or IME’s. 

The First DCA reversed, but recognized that section 440.13 provides no guidance as to whether de-authorized physicians can offer opinion testimony to the JCC.  Using the same analysis of statutory construction the Supreme Court applied in Emma Murray, the First DCA found that to not allow such testimony would counter the Legislature’s intent to prevent doctor shopping.

If the Court allowed this ruling to stand then an E/C could de-authorize any doctor it did not like and authorize a more friendly doctor.  Likewise, a Claimant could use his right to a one time change to silence the opinion of a doctor he disapproved of.   These last-minute changes would cause significant delays in the adjudication of Petitions and the ultimate determination of what an injured worker is owed.

From a practical perspective this is good news for E/C’s whenever a Claimant seeks a one time change.  It is comforting to know that the opinion the E/C prefers can still be heard by the JCC. 

Of course, the same can be said from the Claimant’s point of view.

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