Jessie ALFORD, Appellant,
v.
G. PIERCE WOODS MEMORIAL HOSPITAL AND Stаte of Florida/Division of Risk Management, Appellees.
District Court of Appeal of Florida, First District.
Brian O. Sutter, Port Charlotte, Bill McCabe, Longwood, for appellant.
Michael F. Tew of Tew & Truitt, P.A., Fort Myers, for appellees.
WEBSTER, Judge.
In this workers' compensation case, claimant seeks review of an order which denied her claim seeking authorization of chiropractic treatment. We conclude that the record contains competent substantial evidence to support the order. Therefore, we affirm.
It is undisputed that claimant sustained injuries "arising out of and in the course of employmеnt" on two occasions. In December 1988, claimant injured her neck, back, shoulders, knee and left elbow. In September 1989, after claimant had been released to return to full-duty work, she injured her fingers.
Since her first injuries, claimant has been treated by Dr. Howard Kessler, a board-certified orthopedic surgeon. Dr. Kessler has diagnosed claimant as suffering from "cervical and lumbar spondylosis or arthritis." He opined that claimant had suffered from "a pre-existing arthritic condition which was exacerbated by her work related injury." According to Dr. Kessler, because of her arthritis, claimant was not going to "get better." She would continue to experience good periods and bad periods, as she had for some time. Dr. Kessler said that there was little that he could offer claimant in the way of new treatment. He had prescribed physical therapy (which had included *1381 traction, heat, ultrasound and electrical stimulation) for some time, for temporary relief of claimant's symptoms; and recommended that clаimant continue to receive physical therapy "as needed."
Claimant testified that the physical therapy prescribed by Dr. Kessler provided only temporary relief from her symptoms. She said that she wanted to be treated by Dr. Louis Kirschner, a chiropractor, because her husband had been treated successfully by Dr. Kirschner, and she felt that Dr. Kirschner could achieve similar results with her.
Dr. Kirschner testified that he is a chiropractic physician. Based upon his examination of claimant, Dr. Kirschner diagnosed claimant as suffering from cervical neuralgia, cervical myofascitis, a strain or sprain of the thoracic spine, a lumbar sprain or sprain, sacroiliac disorder and temporal mandibular joint pain-dysfunction syndrome. Based upon his diagnosis, Dr. Kirschner concluded that claimant "was a candidate for chiropractic therapy ... [b]asically adjustments or manipulations to correct the osseous disrelationships of her entire spine and sacroiliac joints." In addition, he said that he would use "traction in the low back," "[e]xercises" and "some electrical stimulation." He opined that "chiropractic treatment would be beneficial to [claimant] because the key thing here is to get the vertebrae that are out of place, or what we call subluxated, back into their proper respective position and functioning again." He saw nothing about claimant's condition to suggest that it would be inappropriate to treat her in such a way.
Over objection that he was unqualified to render such opinions, Dr. Kessler testified that he tried to "read a lot of chiropractic literature"; that he was "familiar with the general nature of treatment modalities that a chiropractor ... offers"; and that he had "had training in some forms of manipulation." He testified that, within a reasonable degree of medical probability, it was his opinion that, while "manipulation in the proper hands in the proper situation is beneficial," in claimant's case manipulation might well "be harmful for her." He explained that "arthritic joints which would be placed through a motion that they would not normally be placed through in some respects would be like going through the trauma or the initial accident that the patient describes. It could increase the symptoms." He also testified that the treatments other than manipulation which were normally used in the practice of chiropractic were not significantly different from those already available to claimant through physical therapy.
The judgе of compensation claims concluded that Dr. Kirschner should not be authorized because (1) based upon Dr. Kessler's testimony, manipulation would be inappropriate, given claimant's condition; (2) other than manipulation, claimant was already receiving essentially the same treatment that Dr. Kirschner recommended; and (3) claimant's request was "motivated by unrealistic expectations," because she believed that chiropractic treatment would result in "a cure." Claimant's principal argument on appeal is that the conclusions of the judge of compensation claims are not supported by competent substantial evidence because Dr. Kessler, an orthopedic surgeon, was not qualified to render opinions on the subject of the appropriateness of chiropractic treatment; therefore, Dr. Kirschner's testimony that chiropractic treatment was appropriate was uncontroverted. We are unable to accept claimant's argument.
Section 440.13(2)(a), Florida Statutes (1991), requires the employer to "furnish to the employee such medically necessary remedial treatment, care, and attendance by a health care provider and for such period as the nature of the injury or the process of recovery may require ..." (emphasis added). Section 440.13(1)(d), Florida Statutes (1991), defines "medically necessary," in relevant part, as follows:
"Medically necessary" means any service or supply used to identify or treat an illness or injury which is appropriate to the patient's diagnosis, consistent with the location of service and with the level of care provided. The service should be widely accepted by the practicing peer *1382 group, should be based on scientific criteria, and should be determined to be reasonably safe. ...
(Emphasis added.) While it may well be true, as claimant argues, that in the majority of cases only a similar "health care provider" will possess the qualifications necessary to permit him or her to testify regarding whether requested care or treatment is "medically necessary," that is not so in this case.
Thе Florida Evidence Code applies to workers' compensation proceedings. See, e.g., Martin Marietta Corp. v. Roop,
There can be nо question but that, as an orthopedic surgeon, Dr. Kessler possesses the qualifications necessary to permit him to offer opinions regarding the effect of arthritis upon a person's joints in general, and spine in particular. Likewise, there can be little question regarding Dr. Kessler's qualifications to offer opinions as to the likely effect of unusual or abnormal movement of the spine upon one suffering from arthritis. Such opinions are clearly based upon his knowledge acquired as an orthoрedic surgeon. The only real question presented is whether Dr. Kessler possesses enough knowledge about chiropractic manipulation to be able to render an opinion as to the effect of such movement upon the spine of someone like claimant, who is suffering from arthritis. Dr. Kessler testified that he tried to "read a lot of chiropractic literature"; that he was "familiar with the general nature of treatment modalities that a chiropractor ... offers"; and that he had "had training in some forms of manipulation." We believe that such testimony was sufficient to permit the judge of compensation claims to conclude that Dr. Kessler knew enough about chiropractic manipulation to opine whether, from a medical standpoint, such movement of the spine would be likely to help or to harm claimant. In fact, we fail to see any meaningful distinction between such testimony and testimony that, within a reasonable degree of medical probability, a particular type of unusual or abnormal movement, such as might occur during a fall or an auto accident, would be likely to cause damage to the spine, or a cervical or lumbar sprain or strain. Clearly, an orthopedic surgeon would be permitted to offer the latter opinions.
Finally, we note that, but for the fact that this is a workers' compensation case, the operative facts are virtually indistinguishable from those in Van Sickle v. Allstate Ins. Co.,
On appeal by plaintiff, the court affirmed. The majority explained its decision as follows:
An orthopedic physician duly and regularly engaged in the practice of orthopedic medicine with special professional *1383 training and experience in orthopedic medicine is not thereby alone necessarily an expert as to every, or any, aspect of chiropractic healing because these two fields are not the same discipline or school of practice. However, expertise in the field of orthopedic medicine may be relevant to expertise on the necessity and reasonableness of chiropractic care and treatment in a particular case, and a particular orthopedic physician may also be possessed of "special knowledge or skill" ... about chiropractic healing as to be qualified as an "expert witness" entitled to testify in the form of an opinion about some aspect of that subject.
The qualification of an expert witness and the perimeters of his expertise are conclusions of fact to be determined advisedly by the trial judge and affirmed on appeal if supported by competent evidence.
Id. at 1288-89 (footnote omitted). In her сoncurring opinion, Judge Sharp pointed out that
it is clear that orthopedic medicine encompasses the causes of injuries to the spine, neck and bones in the hand and wrist, as well as what kinds of medical treatment are suitable to cure or remedy such injuries... . Further, [the orthopedic surgeon] was shown to have sufficient knowledge about the techniques of spinal manipulation (which perhaps all orthopedic surgeons would not have), in order to permit him to testify about the effects of sрinal manipulation of an arthritic or degenerative spine.
Id. at 1290.
We agree with the analysis contained in both the majority and special concurring opinions in Van Sickle. We conclude that the record contains competent substantial evidence to sustain the finding of the judge of compensation claims "that chiropractic manipulation would be inappropriate given the claimant's arthritic condition." Accordingly, the evidence is sufficient to support the decision of the judge of cоmpensation claims to deny the request to authorize Dr. Kirschner, because the requested chiropractic treatment was not "medically necessary." Therefore, we affirm.
AFFIRMED.
BARFIELD, J., concurs.
ERVIN, J., dissents with written opinion.
ERVIN, Judge, dissenting.
I would reverse the order denying appellant's claim seeking authorization of chiropractic treatment for the reason that the only evidence supporting the denial was the opinion testimony of Dr. Kessler, an orthopedic physician, which, in my judgment, is incompetent because of the unique provisions of Section 440.13, Florida Statutes (1987). In so concluding, I think it helpful to discuss some additional facts not recited in the majority's opinion.
While under the care of Dr. Kessler, claimant testified that she had received 221 physical therapy treatments, and that her pain had not abated, but in fact had become more severe during the three years following the occurrence of her injuries. Claimant stated that it was her fervent desire to be able to do the things that she had always done before the work-related accidents; that she wished to live a normal life, explaining, "I am just 42 years old and I plan on doing a whole lot of things with my life besides hurting. I just want some relief." Contrary to Dr. Kessler's testimony stating that chiropractic manipulation might be harmful to claimant, Dr. Kirschner, a chiropractic physician, considered that such treatment would be beneficial to her and further opined that if claimant did not receive such relief, she would eventually develop weakness in the ligaments, including the discs in the lumbar sacral spine, which would predisрose her to disc and possible nerve root problems in the lower extremities.
If the present case involved only a contest of conflicting opinions by two physicians licensed in different fields of practice, I could agree with the majority that the order should be affirmed because it would be supported by competent, substantial evidence. The threshold question requiring *1384 decision, however, is whether Dr. Kessler, a physician not licensed within the practicing peer group whose care claimant requested, was qualified under the provisions of section 440.13 to express the opinion that chiropractic treatment was not reasonable and necessary.
In our interpretations of section 440.13(3) pertaining to a claimant's specific request for chiropractic care, we have held that an employer's provision of an orthopedist did not satisfy the employer's statutory obligation, and that the employer was therefore required to pay for chiropractic treatment if such treatment was determined to be reasonable and necessary by a judge of compensation claims (JCC). City of Hialeah v. Jimenez,
In no previous opinion, however, have we expressly decided whether a physician, not licensed within the same school of practice as that requested by an employee, is qualified to express an opinion as to the reasonableness and necessity of the practitioners' care, pursuant to the provisions of section 440.13, notwithstanding that the witness may satisfy the qualifications of an expert, as provided in Section 90.702, Florida Statutes, by reason of his knowledge and education. I am of the view that Dr. Kessler is not quаlified by virtue of section 440.13 to give any such opinion, and it is therefore immaterial, for the reasons stated infra, that he may otherwise be qualified as an expert under section 90.702. In reaching this conclusion, I refer to section 440.13(1)(c), which defines "medically necessary" as
any service or supply used to identify or treat an illness or injury which is appropriate to the patient's diagnosis, consistent with the location of service and with the level of care provided. The service should be widely accepted by the practicing peer group, should be based on scientific criteria, and should be determined to be reasonably safe.
(Emphasis added.)
The above language requires that the requested service "be widely accepted by the practicing peer group." I think it obvious, by examining the legislative reference to the term "peer," that it was not reasonably within the legislature's contemplation that physicians of one school of practice would be considered qualified to give opinions regarding the appropriateness of requested treatment by physicians of another licensed school or community of practice. Although peer is not defined in section 440.13, the dictionary defines it as "a person or thing of the same rank, value, quality, ability, etc." Webster's New World Dictionary 1048 (2d college ed. 1980).
When comparing the statutory term, "practicing peer group," with the term "peer review committee," used in other portions of section 440.13, I think it reasonably clear, given the definition of peer, that the former term means simрly the same licensed school of practice. In so saying, I note that section 440.13(1)(e) defines "peer review committee" to mean "a committee composed of physicians licensed under the same authority as the physician who rendered the services being reviewed." (Emphasis added.) While the term "peer review committee" is not used in regard to that portion of section 440.13(3) relating to a requested change in the health care provided an employee, but rather is spеcifically applied to review of overutilization of services rendered by health care providers, I consider that the manner in which the term is otherwise applied in the statute demonstrates that the legislature intended that only licensed physicians of the same school as the physician whose care is requested *1385 are qualified to state whether the requested care is reasonable and necessary. Moreover, it appears that in common practice only those physicians of the same community as the physician whose services are reviewed serve on review committees. See, e.g., Lamounette v. Akins,
My interpretation of section 440.13 is consistent with the general rule recognizing that physicians of one school are incompetent to testify in malpracticе actions against physicians of other schools regarding whether such physicians' treatment conformed with the requisite degree of skill and care in their practice area, and that defendants in such actions are entitled to limit testimony to that of competent practitioners of their own schools of medicine.[1] 61 Am.Jur.2d Physicians, Surgeons, & Other Healers § 353 (1981).
The majority, however, ante at 5, refers to the Florida Evidence Code, specifically section 90.702, relating to the testimony of experts, which provides in part that "a witness [may be] qualified as an expеrt by knowledge, skill, experience, training, or education." The majority reasons therefrom that because Dr. Kessler adequately demonstrated his expertise in the subject of his opinion, competent, substantial evidence exists to support the order entered. The majority refers as well to Martin Marietta Corp. v. Roop,
It is axiomatic that a more specific statute (here section 440.13) dealing with a particular subject is controlling over a statute that covers the same subject more generally. Department of Health & Rehab. Servs. v. American Healthcorp of Vero Beach, Inc.,
Although section 766.102(2)(c) relaxes the general rule precluding one who is not a *1386 similar health care provider from offering an opinion against one from a different medical discipline or specialty, it is important to observe that the provision requires that before such person may qualify as an expert to testify whether a defendant's action conformed to the prevailing professional standard of care, the witness must, at the very minimum, have training, experience, and knowledge in a "related field of medicine." (Emphasis added.) For example, in Cross v. Lakeview Ctr., Inc.,
Because the language of a particular statute may restrict the right of a person from rendering an opinion in a given case, notwithstanding that such person may otherwise meet the qualifications of an expert witness pursuant to section 90.702, the majority's reliance on Van Sickle v. Allstate Insurance Co.,
If the only limitation placed upon Dr. Kessler's right to testify was as provided in section 90.702, I could agree with the majority that the JCC did not abuse his discretion in deciding that Dr. Kessler, an orthopedic surgeon, possesses the necessary knowledge, education, etc., to opine that chiropractic care was not reasonable and necessary. Because, however, the provisions of the more specific section 440.13 restrict such testimony to the same practicing peer grouр or discipline as that from which the treatment is sought, the opinion testimony of a physician from a different practicing peer group must be considered incompetent as to the reasonableness and necessity of such solicited care. And, as the only competent evidence submitted to that issue was from Dr. Kirschner, a physician within the same practicing peer group, the JCC's order denying the claim for chiropractic treatment should be reversed and the cause remanded with directions that the claim be approved.
NOTES
Notes
[1] The general rule has been modified by statute in Florida. See § 766.102(2), Fla. Stat. (1991), and discussion infra.