Miller Electric Co. v. Oursler, 113 So. 3d 1004

Claimant injured his back at work in December 2000; the Employer/Carrier (E/C) accepted the injury as compensable and authorized treating physicians Ibars (MMI 2001; palliative care 2002) and De-Meo (palliative care until Aug. 2010).
De-Meo opined the compensable injury was no longer the major contributing cause (MCC) of any need for treatment, leading the E/C to deny further medical treatment.
Claimant filed petitions for benefits seeking continued care with Ibars or De-Meo; the E/C contested these petitions based on De-Meo’s opinion.
On April 27, 2011 Claimant consulted an unauthorized doctor, Mouhanna; at a July 2011 hearing the JCC ruled Mouhanna was not an independent medical examiner (IME) but reserved ruling on whether Mouhanna’s emergent treatment could be deemed authorized.
The JCC sua sponte appointed an expert medical advisor (EMA) to resolve conflicting opinions; the EMA eventually opined MCC was the basis for Claimant’s continuing need for care, and the E/C argued a fraud defense based on alleged misrepresentations to the EMA; in April 2012 the JCC accepted Mouhanna’s emergent care and struck the fraud defense as untimely, with remand for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Fraud defense timeliness and due process	E/C may assert fraud; due process requires consideration of timing	Fraud defense was untimely and properly raised	Remanded to evaluate due process and merits
Admissibility of Mouhanna’s opinion and EMA validity	Mouhanna’s opinion admitted; EMA necessary due to conflicting opinions	EMA appointment premature; Mouhanna’s opinion should be inadmissible	EMA admissibility error; Mouhanna’s opinion excluded on remand
Authorization framework for care from unauthorized providers	Care should be authorized if prerequisites under 440.13(2)(c) are met; evidence supports compensability	Unauthorised-care opinions barred absent proper prerequisites; lack of admissible medical proof	Claimant failed to prove admissible prerequisites; on remand require proof to authorize care under statute
Use of bootstrapping medical opinions barred by 440.13(5)(e)	Some opinions admissible as fact-purpose evidence; medical opinions from authorized sources needed	Cannot bootstrap excluded medical opinions to justify care	Bootstrapping barred; once provider becomes authorized, their medical opinions may support other issues on remand
Procedural posture and final disposition	Admit Mouhanna and EMA to resolve issues; remedies should allow ongoing proceedings	Rulings favorable to Claimant should not be overturned without due process	Affirmed in part, reversed in part, remanded for further proceedings consistent with opinion

Oakdell, Inc. v. Gallardo, 505 So.2d 672 (Fla. 1st DCA 1987) (fraud defense need not be preemptively asserted; due process concerns)
E. Airlines v. Griffin, 654 So.2d 1194 (Fla. 1st DCA 1995) (due process considerations in fraud defenses)
Isaac v. Green Iguana, Inc., 871 So.2d 1004 (Fla. 1st DCA 2004) (due process requires evaluation of fraud defenses)
Parodi v. Florida Contracting Co., Inc., 16 So.3d 958 (Fla. 1st DCA 2009) (prerequisites for authorization of care from unauthorized providers)
Butler v. Bay Ctr./Chubb Ins. Co., 947 So.2d 570 (Fla. 1st DCA 2006) (substantive vs. procedural law; evidentiary prerequisites apply per date of accident)
Fresenius Med. Care Holdings, Inc., 935 So.2d 686 (Fla. 1st DCA 2006) (evidentiary treatment of authorized providers and evidence admissibility)
Gomez Lawn Serv., Inc. v. The Hartford, 98 So.3d 212 (Fla. 1st DCA 2012) (appeal posture when a ruling is wholly favorable to a party)
Fast Tract Framing, Inc. v. Caraballo, 994 So.2d 355 (Fla. 1st DCA 2008) (legislative policy considerations in evidentiary rulings)