FALCON FARMS AND TRAVELERS CASUALTY & SURETY CO., APPELLANTS/CROSS-APPELLEES,
v.
MARIA ESPINOZA, APPELLEE/CROSS-APPELLANT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In a workers' compensation case, the Florida First District Court of Appeal addressed whether an employee who suffered a non-work-related injury was entitled to a change of physician. The court held that because the injury was determined to be non-compensable and thus not work-related, the employee was not entitled to exercise her right to change physicians, which is statutorily limited to work-related injuries.
The court reversed the JCC's award of a change of physician because the injury was found to be non-compensable and therefore not work-related. The statutory right to change physicians applies only to work-related injuries, so an employee with a non-work-related injury is not entitled to exercise this right. The court affirmed the JCC's finding of non-compensability.
[1] Arguments not raised before the Judge of Compensation Claims are not preserved for appellate review.
[2] If an error first appears in a final order, the aggrieved party must bring it to the judge's attention by filing a motion for rehearing to preserve it for appellate revie…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The plain language of section 440.134(10)(c) requires the injury to be a "work-related injury."”
Establishes the statutory requirement that the right to change physicians applies only to work-related injuries
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn December 20, 2009, Claimant developed a bump on her finger while using a hand-held "gun" to put dates on flower bouquets for her employer. The empl…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Work-Related Injury cases and more on FLexlaw
In this workers’ compensation case, Claimant alleged that on December 20, 2009, she developed a bump on her finger from using a hand-held “gun” to put dates on flower bouquets for her Employer. Employer, under a managed care arrangement, provided treatment with a doctor who opined the condition was not work related. Claimant filed a petition for benefits seeking a change in primary care physician. The Judge of Compensation Claims (JCC) awarded the change of physician and simultaneously denied compens-ability of the accident. The Employer/Carrier (E/C) argues on appeal that Claimant is not entitled to a change of physician because her condition is nonoccupational. Claimant cross-appeals, arguing the JCC’s finding of noncompensa-bility is legally inconsistent with his award of a change of physician. For the reasons below, we reverse the order on appeal and affirm the cross-appeal.
Addressing the cross-appeal first, Claimant has not shown the JCC erred in ruling the accident not compensable. The sole basis of Claimant’s challenge on compensa-bility is that the order is incongruous with the award of a change of physician. Claimant did not present this argument to the JCC — not even on rehearing, once the basis of the JCC’s ruling was clear; therefore, Claimant did not preserve such an error for appellate review. See Jellison v. Dixie S. Indus., Inc., 857 So.2d 365, 366 (Fla. 1st DCA 2003) (holding arguments not raised before JCC are not preserved for review); Hamilton v. R.L. Best Int’l, 996 So.2d 233, 234 (Fla. 1st DCA 2008) (holding if error is one that first appears in final order, aggrieved party must bring it to judge’s attention by filing motion for rehearing).
Given that the accident is not compensa-ble, the E/C’s argument on appeal has merit. Section 440.13(2)(f), Florida Statutes (2009), provides that “[u]pon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course *946of treatment for any one accident.” Section 440.134(10)(c), Florida Statutes (2009), likewise provides that a managed care arrangement must grant the right to “one change to another provider within the provider network as the authorized treating physician during the course of treatment for a work-related injury, in accordance with the procedures provided in s. 440.13(2)®.” The plain language of section 440.134(10)(c) requires the injury to be a “work-related injury.” The JCC here found Claimant presented no “persuasive medical evidence” that an injury arose out of employment, and Claimant does not challenge that finding. It follows that the JCC erred in awarding a change of physician.
AFFIRMED in part and REVERSED in part.
DAVIS and RAY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Esad Babahmetovic v. Scan Design Fla. Inc./Zenith Ins. Co., 176 So. 3d 1006 (Fla. 1st DCA 2015)…nt. Providence Prop. & Cas. v. Wilson, 990 So. 2d 1224, 1225 (Fla. 1st DCA 2008). The E/C concedes that Claimant properly requested a one-time change; thus, he is entitled to the one-time change he requested. We distinguish Falcon Farms v. Espinoza, 79 So. 3d 945 (Fla. 1st DCA 2012), where this court reversed the award of a one-time change, because in Falcon Farms there was no work-related injury at all, only a finding that the claimant “presented no ‘persuasive medical evidence’ that an injury arose out of…
Authorities Cited
- Bank OF Am. v. Reta Butler, 996 So. 2d 233 (Fla. 4th DCA 2008)
- Hamilton v. R.L. Best Int'l & Protegrity Servs., Inc., 996 So. 2d 233 (Fla. 1st DCA 2008)
- Deana B. Jellison v. Dixie S. Indus., Inc., 857 So. 2d 365 (Fla. 1st DCA 2003)