Rucker v. City of Ocala

684 So. 2d 836, 1996 WL 708614
CourtDistrict Court of Appeal of Florida
DecidedDecember 5, 1996
Docket95-3224
StatusPublished
Cited by30 cases

This text of 684 So. 2d 836 (Rucker v. City of Ocala) 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
Rucker v. City of Ocala, 684 So. 2d 836, 1996 WL 708614 (Fla. Ct. App. 1996).

Opinion

684 So.2d 836 (1996)

Benjamin RUCKER, Appellant,
v.
CITY OF OCALA and Crawford & Co., Appellees.

No. 95-3224.

District Court of Appeal of Florida, First District.

December 5, 1996.
Rehearing Denied January 10, 1997.

*837 Barbara L. Richard, Ocala, for appellant.

Betty D. Marion, Ocala, for appellees.

KAHN, Judge.

In this workers' compensation appeal, the claimant, Benjamin Rucker, challenges the constitutionality of section 440.13(5)(e), Florida Statutes (Supp.1994). The statute in question delineates and limits the medical witnesses who may testify in a workers' compensation case. This limitation, argues Rucker, denies him his constitutional right of access to courts and offends his due process *838 and equal protection guarantees under the Florida Constitution. Because we find the challenges raised to be without merit, we affirm.

I

Factual Background

On June 14, 1994, Rucker sustained a compensable injury to his back and neck in his employment as a sanitation worker for the City of Ocala. Rucker received medical treatment from physicians at Care-1, including Dr. Cunningham, Dr. Hannah, and Dr. Webb. These doctors diagnosed cervical, thoracic, and lumbar strain. Rucker also underwent eight weeks of physical therapy, and he subsequently saw Dr. DiSclafani, a neurosurgeon, and Dr. Faris, an orthopedic surgeon.

On September 8, 1994, the physicians at Care-1, particularly Dr. Hannah, released Rucker to full duty with a 50-pound lifting restriction. Following his injury, the employer had assigned Rucker to a light duty position and Rucker worked in that capacity until September 15, 1994, but he did not return to work thereafter. Rucker continued to experience pain in his back and neck, and sought treatment from Dr. Bennett, a chiropractor. Rucker did not ask the employer/servicing agent (E/SA) or the physicians at Care-1 to refer him to a chiropractor.

In a request for assistance dated September 23, 1994, Rucker requested temporary total disability (TTD) or temporary partial disability (TPD) benefits from June 17, 1994, to date and continuing; authorization of Dr. Bennett for continued chiropractic care; authorization for an independent medical examination (IME) by Dr. Jones, an orthopedic surgeon; and penalties, interest, costs, and attorney's fees. The E/SA denied this request. Rucker subsequently filed a corresponding petition for benefits.

Rucker eventually had an IME with Dr. Jones on November 22, 1994. In his IME report, Dr. Jones indicated that Rucker had cervical sprain with a bulging disc C5-C6 and lumbosacral sprain with bilateral foraminal encroachment. Dr. Jones also indicated that Rucker had reached maximum medical improvement (MMI), with six percent cervical spine impairment and six percent lumbosacral spine impairment. Dr. Jones opined that Rucker "should return to work at light duty" and "[h]is limitations are no lifting over 50 pounds and no overhead work."

In addition, between October 1994 and March 1995, in response to Rucker's repeated requests for authorization of Dr. Bennett, the E/SA offered to authorize four chiropractors: Dr. Haling, Dr. Frey, Dr. Berning, and Dr. Anglin. Rucker declined Dr. Haling altogether. Rucker requested an appointment with Dr. Frey, but when the E/SA did not make that appointment by a certain time, Rucker returned to Dr. Bennett. When the E/SA notified Rucker of an appointment with Dr. Berning, Rucker refused to see him. The E/SA then offered Dr. Haling again, but Rucker again declined. In March 1995, the E/SA offered Dr. Anglin, who Rucker began seeing for treatment. Rucker denied receiving any pain relief as a result of this treatment, however, and discontinued seeing Dr. Anglin. In March 1995, Rucker filed another petition for benefits requesting payment of Dr. Bennett's bills. This case turns on whether Dr. Bennett, who treated Rucker but was never authorized by the E/SA, should have been allowed to testify on Rucker's behalf.

II

Proceedings Before the JCC

Before the merits hearing, the E/SA sought an order excluding Dr. Bennett's testimony. Citing section 440.13(5)(e), Florida Statutes (Supp.1994),[1] the E/SA argued that *839 because they had never authorized Dr. Bennett, his testimony was prohibited.

In response, Rucker filed a Motion to Designate Dr. Bennett as Medical Advisor. In this motion, Rucker argued that the E/SA had not authorized Dr. Bennett, nor had he performed an IME; therefore, pursuant to section 440.13(5)(e), Dr. Bennett's testimony could be admitted into evidence only if the JCC appointed him as a medical advisor. Rucker asserted that because the issues pending before the JCC included authorization of Dr. Bennett and payment for his bills, Rucker would be severely prejudiced without Dr. Bennett's testimony. Rucker further asserted that refusal to admit Dr. Bennett's testimony into evidence would amount to a denial of his right to a fair hearing and due process of law.

The JCC granted the E/SA's request to exclude Dr. Bennett's testimony. The JCC also denied Rucker's Motion to Designate, citing section 440.13(4) and Florida Administrative Code Rule 38F-54.002(10). At the final hearing, Rucker moved Dr. Bennett's deposition into evidence, and the JCC denied that request. Rucker then proffered the deposition into the record.

In the final order, the JCC denied Rucker's petition for benefits. Regarding the request for chiropractic care and authorization of Dr. Bennett, the JCC indicated that he was "required by statute and existing case law to deny this part of the claim because Dr. Bennett's testimony was excluded by operation of statute." Similarly, regarding the request for TTD and/or TPD benefits, the JCC determined that "[b]ased upon the evidence which was admitted into the record, I find that the Employee voluntarily limited his income from December 15, 1994 through the date of the hearing (with one exception) and is therefore precluded from recovering any TPD benefits during this time." The JCC found that "all of the physicians whose records or testimony is in the record seemed to agree that the Claimant could return to work, provided he did not have to lift over 50 pounds."

Rucker has appealed and raises four points. Specifically, Rucker asserts that the JCC erred in interpreting the term "authorized treating provider" in section 440.13(5)(e) to mean treating providers authorized by the E/SA, thereby rendering the statute unconstitutional. Rucker also asserts that the JCC erred in applying section 440.13(5)(e) to exclude Dr. Bennett's testimony because the statute is unconstitutional (1) as a denial of procedural due process in violation of article I, section 9 of the Florida Constitution, (2) as a denial of access to courts in violation of article I, section 21 of the Florida Constitution, and (3) as a violation of equal protection as guaranteed by article I, section 2 of the Florida Constitution.

III

"Authorized Treating Provider"

As to the first point on appeal, we find that the JCC did not err in interpreting the term "authorized treating provider" in section 440.13(5)(e) to mean treating providers authorized by the E/SA. The term "authorized treating provider" is not defined in chapter 440. Nevertheless, a review of other sections in chapter 440 reveals that the clear *840 meaning of the term is treating providers authorized by the employer/carrier/servicing agent.

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Bluebook (online)
684 So. 2d 836, 1996 WL 708614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rucker-v-city-of-ocala-fladistctapp-1996.