Norrell Temporary Services v. Baxter

645 So. 2d 1068, 1994 Fla. App. LEXIS 11453, 1994 WL 653459
CourtDistrict Court of Appeal of Florida
DecidedNovember 22, 1994
DocketNo. 93-3272
StatusPublished
Cited by2 cases

This text of 645 So. 2d 1068 (Norrell Temporary Services v. Baxter) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Norrell Temporary Services v. Baxter, 645 So. 2d 1068, 1994 Fla. App. LEXIS 11453, 1994 WL 653459 (Fla. Ct. App. 1994).

Opinion

DAVIS, Judge.

Norrell Temporary Services and Crawford & Company (E/C) appeal from an order of the Judge of Compensation Claims (JCC) ordering the E/C to provide claimant, Leona Joan Baxter, with ongoing medical care by Dr. Hooshmand and ordering that the E/C pay Dr. Hooshmand for care provided to claimant from June 1992 until the date of the final hearing. The E/C argue on appeal that the JCC erred in ordering authorization of Dr. Hooshmand for the following reasons: (1) claimant failed to object to the neurologists and neurosurgeon offered by the E/C until the final hearing; (2) the E/C had no notice that claimant was requesting authorization of Dr. Hooshmand until the final hearing; (3) claimant previously stipulated that Dr. Hooshmand was not authorized and failed to file a motion seeking withdrawal or modification of the stipulation. Because the E/C did not have notice that claimant was seeking authorization of Dr. Hooshmand until the final hearing, we reverse. We also reverse on the basis that the JCC’s order directs the E/C to pay Dr. Hooshmand, an unauthorized physician, for care provided to claimant from June 1992 until the date of the final hearing.

On September 11, 1985, claimant sustained an injury to her ankle during the course and [1070]*1070scope of her employment with Norrell Temporary Services. Claimant reached MMI on March 5,1986. On November 5, 1990, claimant and the E/C entered into a stipulation and joint petition for lump sum settlement. Claimant stipulated that she was seeing Dr. Hooshmand for peripheral neuropathy as a result of a long-standing Coca-Cola addiction, and that Dr. Hooshmand’s treatment and diagnostic testing had been controverted by the E/C as unauthorized and not causally related to the industrial accident.

On February 6, 1992, claimant’s attorney filed a claim seeking authorization for claimant to be evaluated and treated, if necessary, by a neurologist. Claimant’s claim specifically requested authorization of Dr. Tobias, Dr. Miranda or Dr. Kahn. Before the filing of claimant’s claim, claimant had been treating with Dr. Stewart, a neurologist authorized by the E/C located in Miami.

In response to claimant’s claim, the E/C sent a letter to claimant’s attorney on June 12,1992, extending authorization for claimant to be treated by Dr. Barrett or Dr. Mendoza. Claimant’s attorney failed to respond to the E/C’s letter. On July 14, 1992, the E/C sent a second letter to claimant’s attorney asking whether Dr. Barrett or Dr. Mendoza were acceptable to claimant. On August 3, 1992, the E/C sent a third letter to claimant’s attorney, noting that they were in receipt of claimant’s attorney’s letter dated July 22, 1992. The E/C again inquired as to whether Dr. Barrett or Dr. Mendoza were acceptable to claimant. Claimant’s attorney did not respond to the E/C’s letter. On October 19, 1992, the E/C sent a fourth letter by certified mail to claimant requesting that claimant contact the E/C’s attorney prior to the hearing on claimant’s claim scheduled in the next few weeks. The letter noted that attempts to reach claimant by telephone had been unsuccessful. The letter was addressed to claimant because claimant was no longer represented by counsel. Although the letter indicated that it was imperative that the E/C speak to claimant within the next few days, claimant did not respond to the letter.

A hearing on claimant’s claim was scheduled on November 3, 1992. Claimant did not attend the hearing. On November 4, 1992, the E/C sent claimant a fifth letter by certified mail advising claimant that the JCC had rescheduled the hearing on her claim. The E/C again advised claimant that the E/C was extending authorization for treatment with Dr. Barrett or Dr. Mendoza. Because Dr. Barrett may have been retiring, the E/C offered to authorize Dr. Cerbone, Dr. Daugherty, Dr. Husainey or Dr. Mendoza. Claimant failed to respond to the letter.

On July 30, 1993, the E/C sent a sixth letter to claimant forwarding their portion of the pre-trial stipulation for the hearing scheduled on August 16, 1993. The E/C reminded claimant of the physicians previously offered and requested that claimant contact the E/C with regard to the acceptability of one of the doctors. Claimant failed to respond to the letter.

On August 16, 1993, a hearing was held on claimant’s claim for authorization of Dr. To-bias, Dr. Miranda or Dr. Kahn. Paragraphs eight and twelve of an amended pre-trial stipulation stated that claimant was specifically requesting authorization of Dr. Tobias, Dr Miranda or Dr. Kahn. Attorney Thoburn appeared on behalf of the claimant, but had not filed a notice of appearance. Although the amended pre-trial stipulation had already been signed by counsel for the E/C, Mr. Thoburn scratched out claimant’s request in paragraph eight for authorization of Dr. To-bias, Dr. Miranda or Dr. Kahn and substituted Dr. Hooshmand. Mr. Thoburn, however, did not alter claimant’s specific request in paragraph twelve for authorization of Dr. Tobias, Dr. Miranda or Dr. Kahn. Mr. Tho-burn acknowledged that Dr. Hooshmand was not authorized, but informed the JCC that claimant was now requesting that Dr. Hoosh-mand be authorized. Mr. Thoburn informed the JCC that he would be presenting the live testimony of Dr. Hooshmand, as well as evidence that Dr. Hooshmand was more appropriate than the three doctors requested in claimant’s claim.

The E/C objected to the alteration of the pre-trial stipulation because claimant had never filed a claim requesting authorization for treatment by Dr. Hooshmand. The E/C claimed surprise because claimant had stipulated that Dr. Hooshmand was not autho[1071]*1071rized and had specifically requested treatment with three other doctors. The E/C moved for a continuance on the grounds that the E/C had received no notice that claimant was seeking authorization of Dr. Hooshmand or that claimant would be presenting any witnesses or evidence at the hearing. Counsel for the E/C also argued that the E/C needed an opportunity to depose Dr. Hoosh-mand. The JCC denied the E/C’s motion for a continuance and allowed Dr. Hooshmand to testify live at the hearing. The JCC noted that the case had been set since December 4, 1992, and that claimant should not have to wait until a hearing could be rescheduled to see a doctor.

Dr. Hooshmand testified that he first saw claimant on March 20, 1990. At that time, claimant had sensory nerve damage. Dr. Hooshmand also concluded that claimant had a peripheral neuropathy as a result of claimant’s heavy use of Coca-Cola. Dr. Hoosh-mand testified that, in June 1992, he diagnosed claimant as having Reflex Sympathetic Dystrophy (RSD). Dr. Hooshmand testified that, within a reasonable degree of medical probability, claimant’s RSD was causally related to the industrial accident. Dr. Hoosh-mand explained that claimant began having RSD right after her injury, but that the RSD was masked by claimant’s peripheral neuro-pathy from Coca-Cola use. Dr. Hooshmand stated that his current treatment of claimant was solely for RSD. Dr. Hooshmand testified that RSD was not well understood in the medical community and that few neurologists in the area treated RSD patients.

Claimant testified that Dr. Hooshmand was the first physician to diagnose her condition as RSD, that she had benefitted from Dr. Hooshmand’s treatment, and that she wanted to continue treatment with Dr. Hooshmand. Claimant acknowledged receiving a letter from the E/C authorizing five neurologists. Claimant testified that the doctors offered by the E/C either did not treat RSD or were unavailable. Claimant testified that she had always asked the carrier to authorize Dr.

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Related

Pope v. Gordon (In Re Camp)
310 B.R. 634 (N.D. Alabama, 2004)
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790 So. 2d 432 (District Court of Appeal of Florida, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
645 So. 2d 1068, 1994 Fla. App. LEXIS 11453, 1994 WL 653459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norrell-temporary-services-v-baxter-fladistctapp-1994.