Sibley v. Big D Lanes

District Court of Appeal of Florida

Sibley v. Big D Lanes

531 So. 2d 424, 1988 Fla. App. LEXIS 4338, 1988 WL 99513

CourtDistrict Court of Appeal of Florida

DecidedSeptember 29, 1988

DocketNo. BS-216

StatusPublished

This text of 531 So. 2d 424 (Sibley v. Big D Lanes) 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.

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Sibley v. Big D Lanes, 531 So. 2d 424, 1988 Fla. App. LEXIS 4338, 1988 WL 99513 (Fla. Ct. App. 1988).

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Opinions

BARFIELD, Judge.

The claimant contends that the deputy commissioner erred in denying reimbursement for psychiatric treatment which he received without prior approval by the employer/carrier or the deputy commissioner. We affirm.

Relying on the unchallenged opinion of Dr. Rogers, the treating orthopedist, that the claimant did not need psychiatric evaluation or treatment, the deputy commissioner concluded that the unauthorized treatment was neither reasonable nor necessary. The claimant did not question Dr. [425]*425Rogers’ competence to render the psychiatric opinion in the hearing before the deputy commissioner. Neither did he raise the question of Dr. Rogers’ competence as an expert witness in psychiatry in his initial brief on appeal. It was only in the reply brief that the claimant suggested that Norrell Corp. v. Carle, 509 So.2d 1377 (Fla. 1st DCA 1987), precluded the deputy commissioner from relying on Dr. Rogers’ opinion testimony with respect to the claimant’s need for psychiatric evaluation or treatment.

This physician may or may not have been qualified to render a psychiatric opinion. However, the question not having been presented to the deputy commissioner, it is too late to raise the competence of a witness for the first time before this court, especially in a reply brief. Carillon Hotel v. Rodriguez, 124 So.2d 3 (Fla.1960); Mariani v. Schleman, 94 So.2d 829 (Fla.1957).

The deputy commissioner’s order is AFFIRMED.

WIGGINTON, J., concurs. BOOTH, J., dissents, with written opinion.

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BARFIELD, Judge.

The claimant contends that the deputy commissioner erred in denying reimbursement for psychiatric treatment which he received without prior approval by the employer/carrier or the deputy commissioner. We affirm.

Relying on the unchallenged opinion of Dr. Rogers, the treating orthopedist, that the claimant did not need psychiatric evaluation or treatment, the deputy commissioner concluded that the unauthorized treatment was neither reasonable nor necessary. The claimant did not question Dr. [425]*425Rogers’ competence to render the psychiatric opinion in the hearing before the deputy commissioner. Neither did he raise the question of Dr. Rogers’ competence as an expert witness in psychiatry in his initial brief on appeal. It was only in the reply brief that the claimant suggested that Norrell Corp. v. Carle, 509 So.2d 1377 (Fla. 1st DCA 1987), precluded the deputy commissioner from relying on Dr. Rogers’ opinion testimony with respect to the claimant’s need for psychiatric evaluation or treatment.

This physician may or may not have been qualified to render a psychiatric opinion. However, the question not having been presented to the deputy commissioner, it is too late to raise the competence of a witness for the first time before this court, especially in a reply brief. Carillon Hotel v. Rodriguez, 124 So.2d 3 (Fla.1960); Mariani v. Schleman, 94 So.2d 829 (Fla.1957).

The deputy commissioner’s order is AFFIRMED.

WIGGINTON, J., concurs. BOOTH, J., dissents, with written opinion.

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531 So. 2d 424, 1988 Fla. App. LEXIS 4338, 1988 WL 99513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sibley-v-big-d-lanes-fladistctapp-1988.

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