Bradley G. Smith
Top rated Workers' Compensation attorney in Lakeland, Florida
Smith, Feddeler & Smith, P.A.
Practice areas: Workers' Compensation
Licensed in Florida since: 1995
Education: Regent University School of Law
Languages spoken: English, Spanish
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863-336-6927
Smith, Feddeler & Smith, P.A.
832 Florida Avenue SouthLakeland, FL 33801 Visit website
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A partner at Lakeland, Florida, based law firm of Smith, Feddeler & Smith, P.A., Bradley G. Smith has spent his entire career fighting for the rights of injured employees. Working with various state and federal cases, he is an accomplished litigator on workers’ compensation, motor vehicle accidents and ADA/EEOC claims filed by federal agencies. A certified specialist in workers’ compensation by the Florida Bar Board of Legal Specialization & Education demonstrates his commitment to seamlessly incorporating current legislation into practice.
Embarking on a career devoted to championing the rights of injured workers, Mr. Smith’s journey accelerated with a full athletic scholarship to the University of Kentucky. As a standout starting quarterback, he was inducted into the Lakeland High School Dreadnaught Hall of Fame. Later, he pursued legal studies at Regent University, deepening his knowledge.
With a career spanning over 20,000 workers’ compensation claims, Mr. Smith has exclusively represented injured parties and contributed to landmark rulings. His clients constantly rave about his innovative legal strategies, clear and concise communication, and impressive track record of success. He is also an incredibly multitalented businessman; he started the popular Dollarmarket and has been involved in many construction projects.
As the leader of the Lakeland High School Booster Club’s yearly golf event, Mr. Smith played a role in the wider community. Along with his involvement in the Lakeland Christmas Parade, he participated in Central Florida’s Pig Festival. Compassionate and philanthropic, he has supported youth organizations in Hillsborough and Polk counties by sponsoring events like the Hispanic Festival. His impressive resume also includes membership on the executive board of the Florida Workers’ Advocates, where he served as president.
An AV Preeminent* rating from Martindale-Hubbell attests to Mr. Smith’s remarkable competence in workers’ compensation cases. He participates in professional organizations as a member of The Florida Bar, the Polk County Bar Association and the Lakeland Bar Association. An attorney who cares deeply about the welfare of hurt workers, he also has a “Very Good” rating on Avvo.
*AV®, AV Preeminent®, Martindale-Hubbell Distinguished and Martindale-Hubbell Notable are certification marks used under license in accordance with the Martindale-Hubbell certification procedures, standards and policies. Martindale-Hubbell® is the facilitator of a peer-review rating process. Ratings reflect the anonymous opinions of members of the bar and the judiciary. Martindale-Hubbell® Peer Review Ratings™ fall into two categories – legal ability and general ethical standards.
Other Locations To Serve You:
Brandon Office
202 E Brandon Blvd.
Suite 107
Brandon, FL 33511
Phone: 813-906-2981
Kissimmee Office
By Appointment Only
1101 Miranda Lane
Suite 1331
Kissimmee, FL 34741
Phone: 407-917-0282
Tampa Office
By Appointment Only
100 S Ashley Drive
Suite 600
Tampa, FL 33602
Phone: 813-906-2981
Orlando Office
By Appointment Only
4700 Millenia Boulevard
Orlando, FL 32839
Phone: 407-917-0282
Clearwater Office
By Appointment Only
13575 58th Street North
Suite 200
Clearwater, FL 33760
Phone: 813-906-2981
Practice areas
Workers' Compensation: Claimant- 100% Workers' Compensation: Claimant
First Admitted: 1995, Florida
Professional Webpage: https://www.all-injuries.com/attorney/bradley-g-smith/
Bar / Professional Activity
- Member of Florida Bar Association , 1995
- Florida, 1995
- Certified in Worker's Compensation, Florida Bar, 2003
- American Inns of Court , 2016
Verdicts / Settlements (Case Results)
- Workers’ Compensation settlement of $835,000.00. Claimant was on a work site when a septic tank collapsed causing them to fall inside, resulting in injuries to their neck and arm., 2020
- https://www.all-injuries.com/case-results/
- Workers’ Compensation settlement of $445,000.00. Claimant worked as a selector at a warehouse when they slipped and fell injuring their lower back., 2020
- FIRST DISTRICT COURT OF APPEALSTATE OF FLORIDA_____________________________No. 1D18-1927_____________________________CITY OF BARTOW and COMMERCIAL RISK MANAGEMENT,Appellants,v.ISIDRO FLORES,Appellee._____________________________ On appeal from an order of the Judge of Compensation Claims.Robert A. Arthur, Judge.Date of Accident: April 28, 2015.May 29, 2020M.K. THOMAS, J.We review an order of the Judge of Compensation Claims, (JCC) finding the Employer/Carrier (E/C) failed to comply with section 440.13(2)(f), Florida Statutes (2015), the “one-time change provision,” and awarding authorization of a claimant-selected alternate physician. We write only to address a matter of first impression—what satisfies the E/C’s obligation under section 440.13(2)(f) to “provide” an alternate physician or forfeit its right of selection. We affirm as to all issues, though we certify a questionof great public importance asking the supreme court to clarify the issue.FactsFollowing a compensable work injury in 2015, Claimant was authorized to treat with Dr. Henkel, a neurologist. On June 20, 2017, Claimant’s counsel requested, via letter, a change in physician within the same specialty. A response providing the date and time of an appointment was requested from the carrier within five days. The following day, the E/C’s attorney acknowledged the request and advised Claimant’s counsel that the E/C “is authorizing Dr. Mary Ellen Shriver, and Dr. Henkel is no longer authorized. . . .” The E/C further informed that “[d]etails regarding the appointment will be forthcoming under separate cover.” Between June 28 and July 19, multiple communications occurred between the parties as a result of Claimant inquiring about the status of the appointment with Dr. Shriver. Claimant’s counsel filed a Petition for Benefits on July 19, requesting “a one-time change as requested on June 20, 2017” and designating Dr. Koebbe as Claimant’s alternate physician selection, as the “E/C has not provided the response requested within 5 days from the request for the change.” On August 16, 56 days after the E/C’s receipt of the one-time change request, Claimant was advised of an appointment with Dr. Shriver for September 11 (63 days from date of the request). Claimant’s counsel responded that Claimant would not attend the appointment with Dr. Shriver and advised the E/C to refrain from any resetting until after the issues raised in the petition were addressed at final hearing. The E/C defended the petition by asserting the one-time change provision was satisfied, as it named Dr. Shriver and notified Claimant of the authorization within one day of receiving the request for the one-time change. The E/C filed a motion for summary final order. Claimant objected asserting that, prior to an adjudication of the claim, there were multiple issues of fact to be considered by the JCC, including the timeliness of the E/C’s actions and “the implied statutory standard of reasonableness.” Claimant emphasized that during his two-month wait for notification of an appointment date with Dr. Shriver, he was without an authorized medical provider due to the automatic deauthorization of Dr. Henkel. The JCC denied the E/C’s motion, finding the matter required resolution of mixed questions of law and fact. At hearing on the petition, Claimant stipulated that the E/C timely responded within five days to his request for a one-time change. No witnesses were called by either party to testify; however, during legal argument, the E/C’s attorney asserted that “as an officer of the court,” she could establish that her office contacted Dr. Shriver’s office on June 23 regarding acquisition of an appointment date, and numerous calls were made on June 24 and 25 to acquire an appointment date. The defense attorney further stated that “there [were] calls made, calls that came back [and] that missed each other. And then there, was, having to send over the records, there was having to wait for review by the doctor, and then ultimately an appointment was made.” Claimant’s attorney countered that he was entitled to authorization of Dr. Koebbe, his choice of alternate physician, as the E/C did not “provide” an appointment date with Dr. Shriver as required by section 440.13(2)(f). The JCC entered a final order granting Claimant’s request for a one-time change of his choice. In response to the E/C’s subsequent motion for rehearing and to vacate the final order, a second hearing occurred to address due process arguments.1 Subsequently, the JCC entered the Amended Final Order that is the subject of this appeal. The JCC again ruled in Claimant’s favor for authorization of Dr. Koebbe.In the amended final order, the JCC made the following findings of fact concerning the acquisition of an appointment with Dr. Shriver:On July 20, 2017 counsel for the [E/C’s] staff, responded to Claimant’s inquiries advising that she had been trying to get through to them, and that Claimant counsel would1 We affirm the issues on appeal related to alleged due process violations. Accordingly, these facts are not further developed. be notified when a date/time had been obtained. Although it is not entirely clear to whom E/C staff was referring as “them,” the context surrounding the e-mail, the request for information about an appointment with Dr. Shriver, and the fact that all communication on this issue originated directly from counsel for the [E/C] I accept that the e-mail refers to attempts to get through to Dr. Shriver. When the attempts to contact Dr. Shriver were initiated is not entirely clear from the evidence. What the evidence shows is that [E/C] did not “get through” to Dr. Shriver until August 16, 2017 which is the date the [E/C’s] counsel sent notice of a September 11, 2017 appointment with Dr. Shriver to counsel for the Claimant. (Emphasis in original.) The JCC further determined, “[f]rom the limited evidence submitted it can be reasonably inferred that attempts to contact Dr. Shriver were not initiated until a month following the request for the change and multiple requests for status from the claimant’s counsel.” The JCC found no evidence Claimant had waived the right to select his one-time change of physician as he did not attend the appointment with Dr. Shriver. Legal AnalysisA JCC’s factual findings will be upheld if supported by competent substantial evidence (CSE), regardless of whether “other persuasive evidence, if accepted by the JCC, might have supported a contrary ruling.” Pinnacle Benefits, Inc. v. Alby, 913 So. 2d 756, 757 (Fla. 1st DCA 2005). However, to the extent the issues raised on appeal concern statutory construction, a question of law is presented, and our review is de novo. Palm Beach Cty. Sch. Dist. v. Ferrer, 990 So. 2d 13, 14 (Fla. 1st DCA 2008); Matrix Emp. Leasing v. Hernandez, 975 So. 2d 1217, 1218 (Fla. 1st DCA 2008); Mylock v. Champion Int’l, 906 So. 2d 363, 365 (Fla. 1st DCA 2005). The JCC defined the issue before him as “what constitutes the authorization and provision of a change of physician as indicated in [section 440.13(2)(f)].” Because this Court has previously addressed the meaning of “authorization” in this context, we rephrase the issue on appeal as what satisfies the E/C’s obligation under section 440.13(2)(f) to “provide” an alternate physician or forfeit its right of selection. “The substantive benefit provided in paragraph 440.13(2)(f) is a claimant-initiated, one-time change of physician, without regard to medical necessity.” Gadol v. Masoret Yehudit, Inc., 132 So. 3d 939, 940 (Fla. 1st DCA 2014) (citing Sunbelt Health Care v. Galva, 7 So. 3d 556, 561 (Fla. 1st DCA 2009)). The one-time change provision states: Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.§ 440.13(2)(f), Fla. Stat. (emphasis added). The third sentence of section 440.13(2)(f) requires that the carrier “shall authorize” an alternative physician within five days. This Court has defined the necessary steps required of an E/C to satisfy authorization in this context.2 See Gadol, 132 So. 3d at 940 (holding an E/C timely responds by informing claimant of new doctor’s name within five days and “does not require the E/C to actually contact or schedule an appointment with the new doctor”);2 Neither section 440.13(2)(f) nor any other provision of section 440.13, Florida Statutes, defines the terms “authorize” or “provide.” Bustamante v. Amber Constr. Co., 118 So. 3d 921, 922 (Fla. 1st DCA 2013) (holding E/C timely response to one-time change of physician request requires notice to claimant of authorization—the “flip side” of Frederic); Hinzman v. Winter Haven Facility Operations LLC, 109 So. 3d 256, 257 (Fla. 1st DCA 2013) (holding the five-day response period refers to calendar days, not business days);HMSHost Corp. v. Frederic, 102 So. 3d 668, 668 (Fla. 1st DCA 2012) (“E/C’s informing Claimant of a particular doctor’s name within five days of receiving the request satisfied section 440.13(2)(f), even though the E/C did not contact the doctor.”); Harrell v. Citrus Cty. Sch. Bd., 25 So. 3d 675, 678 (Fla. 1st DCA 2010) (noting that “[t]o timely respond to a claimant’s request, an E/C is not required to schedule an appointment with the newly authorized physician”); Dorsch, Inc. v. Hunt, 15 So. 3d 836, 837 (Fla. 1st DCA 2009) (holding authorization in the context of section 440.13(2)(f), does not “mean that an appointment with a specific physician was ‘actually scheduled. . . .’ It requires merely that the appointment be timely authorized”). Here, Claimant concedes that the E/C named an alternative physician and notified him of the physician’s name within five calendar days of receipt of the written request. Thus, the third sentence of section 440.13(2)(f), requiring the carrier to timely “authorize,” was satisfied. However, Claimant argues that he is nonetheless entitled to select the change of physician because although the E/C timely named and authorized an alternative physician, it did not “provide” that named physician as required by the fourth sentence of the statute. Specifically, after acknowledging Claimant’s written request and timely “authorizing” Dr. Shriver, the E/C sat on its hands and did not notify Claimant of an appointment date for 56 days.3 During this unreasonably long waiting period, Claimant was without authorized medical care due to the automatic de-authorization of the treating physician. Because the E/C failed to “provide” the alternate physician within a reasonable time, Claimant argues the 3 The JCC’s order refers to a delay of 58 days and the party’s reference 56 days between the request for an alternate and notice of an appointment date. This discrepancy is not relevant to our statutory interpretation. JCC correctly determined the E/C forfeited its control, and he was entitled to select the change of physician. Conversely, the E/C interprets the third and fourth sentences of section 440.13(2)(f) as jointly requiring but one obligation of an E/C; that is, to name an alternate physician and notify the claimant within five calendar days of receipt of the written request. It further argues that the length of time between authorization of an alternate physician and acquisition of an appointment date is of no relevance. In support, the E/C cites to this Court’s opinion in Frederic, which held “[t]he E/C’s informing Claimant of a particular doctor’s name within five days of receiving the request satisfied section 440.13(2)(f), even though the E/C did not contact the doctor.” 102 So. 3d at 668. However, we are not persuaded by Frederic as the limited issue presented there was timely “authorization” of an alternate physician upon receipt of a written request—a petition. Likewise, we decline to recognize Harrell and Gadol as controlling for the same reason. Until now, this Court has not addressed the specific meaning “provide” in the context of section 440.13(2)(f). Here, the issue derives from the fourth sentence of section 440.13(2)(f), which instructs, “[i]f the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.” (emphasis added). While the third sentence addresses authorization, the fourth sentence addresses both actions—provision and authorization. In the context of section 440.13(2)(f), “authorize” connotes an administrative function while “provide” encompasses affirmative action. “‘When the language of the statute is clear and unambiguous and conveys a clear and definite meaning . . . the statute must be given its plain and obvious meaning.’” Fla. Dep’t of Revenue v. New Sea Escape Cruises, Ltd., 894 So. 2d 954, 960 (Fla. 2005) (quoting A.R. Douglas, Inc. v. McRainey, 137 So. 157, 159 (Fla. 1931)). In construing a statute, we presume that the Legislature knows the meaning of the words it uses and that it intends to employ those meanings in the statute. Overstreet v. State, 629 So. 2d 125, 126 (Fla. 1993); see also State v. Bryant, 953 So. 2d 585, 587 (Fla. 1st DCA 2007) (“Common understanding and reason must be used when analyzing a statute, and words of common usage not specifically defined must be given their plain and ordinary meaning.”). Critical to our interpretation of the third and fourth sentences of section 440.13(2)(f), the Legislature's use of differing language in the same statute is a sign the Legislature intended varied meanings. Carlson v. State, 227 So. 3d 1261, 1267 (Fla. 1st DCA 2017) (“The legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended.”) (citingDPRB v. Durrani, 455 So.2d 515, 518 (Fla. 1st DCA 1984)); see also ANTONIN SCALIA & BRYAN GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 170 (2012) (“[W]here the document has used one term in one place, and a materially different term in another, the presumption is that the different term denotes a different idea.”). We must not ignore here that in the same statutory section, the Legislature chose two separate and distinct terms: “authorize” and “provide.” We must avoid statutory interpretations that render meaningless any words the Legislature chose. See Fla. Police Benevolent Ass’n v. Dep’t of Agric. & Consumer Servs., 574 So.2d 120, 122 (Fla. 1991). Here, we regard the Legislature’s use of different terms in the same and contiguous sentences as further bolstering its intent for a variation in meaning. Each sentence of section 440.13(2)(f), standing alone grants a right and/or announces a duty and ramification for noncompliance. The first sentence of section 440.13(2)(f) grants to injured workers a right to a one-time change of physician. The second sentence instructs that upon a claimant’s exercise of that right, the authorized treating physician is automatically deauthorized. The third sentence details that if an E/C “authorizes” the physician within five days of receipt of the written request by a claimant, the E/C retains its right of selection of the alternative physician. Inherently, if an E/C does not timely respond, the right of selection defaults to the claimant. Lastly, the fourth sentence instructs that despite timely authorization of an alternative physician, the E/C may still forfeit its right of selection by failing to “provide” that alternate physician. The Legislature’s deliberate use of different terms in the third and fourth sentences clearly indicates an intent for a two-fold duty on the part of the E/C to retain its right of selection—to timely authorize (defined by this Court as naming the alternate physician and informing the claimant, seeGadol, 132 So. 3d at 940; Bustamante, 118 So. 3d at 922), and to provide the physician by acquiring an appointment date and informing the claimant. Interpretation of section 440.13(2)(f) as proposed by the E/C would be in stark contrast to the overall purpose of Chapter 440, Florida Statutes—to efficiently deliver benefits to the injured worker. See § 440.015, Fla. Stat. (2015) (“The department, agency, the Office of Insurance Regulation, the Department of Education, and the Division of Administrative Hearings shall administer the Workers’ Compensation Law in a manner which facilitates the self-execution of the system and the process of ensuring a prompt and cost-effective delivery of payments.”). “Statutory interpretation that renders statutory provisions superfluous ‘are, and should be, disfavored.’” Johnson v. Feder, 485 So. 2d 409, 411 (Fla. 1986) (quoting Patagonia Corp. v. Bd. of Governors of the Fed. Reserve Sys., 517 F.2d 803, 813 (9th Cir. 1975)). The interpretation favored by the E/C would provide no ramification for an E/C’s unreasonable delay in acquisition of an appointment date with the alternate physician while an injured worker is indefinitely without authorized medical care.4 As this Court has consistently emphasized, “[a]n employer’s right to select and/or ‘authorize’ doctors from whom an employee may receive treatment is concomitant with its affirmative duty to provide appropriate care at the appropriate time.” Parodi v. Fla. Contracting Co., 16 So. 3d 958, 961 (Fla. 1st DCA 2009) (citing Butler v. Bay Ctr., 947 So. 2d 570, 572 (Fla. 1st DCA 2006)); (emphasis added).The Legislature has constructed other portions of section 440.13 in a similar manner to the one-time change provision.4 We note the last sentence of section 440.13(2)(f) provides that failure of a carrier to comply with the subsection “shall be a violation of this chapter and the carrier shall be subject to penalties as provided for in s. 440.525.” Such an audit of carrier performance is critical to ensure compliance but does not provide an available expeditious remedy when an injured worker is unreasonably denied compensable and medically necessary medical care. Regarding provision of initial medical treatment, section 440.13(2)(c), Florida Statutes, requires that the carrier “shall furnish” to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury requires. This subsection, also known as the “self-help provision,” dictates that if the employer fails to “provide” the initial treatment within a reasonable time period, the employee may select a physician and obtain the care at the expense of the employer. § 440.13(2)(c), Fla. Stat. Notably, this Court has previously recognized the distinction between “authorization” and “provision” in other statutory sections of Chapter 440. In Osceola County School Board v. Arace, 884 So. 2d 1003, 1006 (Fla. 1st DCA 2004), the plain meaning of “initial provision of benefits” in section 440.20(4), Florida Statutes, the “120-day provision,” was determined to be “[t]he first authorized doctor’s visit by a claimant.’” In Tomaskovich v. Lapointe, 904 So. 2d 538 (Fla. 1st DCA 2005), in determining whether an E/C was estopped from asserting a denial of compensability under the “120-day” provision, this Court held that a benefit that triggers a time period “must actually be provided, not merely authorized.” Id. at 540 (quoting Arace, 884 So. 2d at 1006).Our interpretation is further supported by prior applications of Chapter 440, which distinguished between an E/C authorization of a benefit and its actual provision of it. See Lord v. Santa Rosa Corr. Inst., 135 So. 3d 1170 (Fla. 1st DCA 2014) (Determined that hours included in an attorney’s fee to claimant’s attorney, agreement to authorize a doctor at mediation did not stop fee clock as attorney had to file a motion to enforce afterwards to actually acquire a named physician); Amerimark, Inc. v. Hutchinson, 882 So. 2d 1114, 1115 (Fla. 1st DCA 2004) (“[T]imeliness of payment of benefits is determined not by the date of which the E/C notifies a claimant’s attorney that the claim is accepted and benefits will be paid, but by ‘the date checks of payment are placed in the mail.’”); Smith v. AMS Staff Leasing, 29 So. 3d 1142, 1144 (Fla. 1st DCA 2009) (An employer would suffer no negative consequences for delaying compliance with a compensation order until the last possible moment, even though the claimant’s petition for rule nisi–and the associated costs and fees he incurred–may have been the direct cause of the employer's compliance); Jennings v. Nat’l Linen Servs., 995 So. 2d 1153, 1155 (Fla. 1st DCA 2008) (“Had the JCC found the E/C unreasonably delayed appointment of a physiatrist, or if, because of the E/C’s actions, Claimant was not receiving treatment for his condition, it would be appropriate to award attorney's fees. See§ 440.34(3)(a), Fla. Stat. (1997).”). Whether the E/C timely “provides” the alternate physician and retains the right of selection is a fact-based question to be determined by the JCC.5 In keeping with the spirit of section 440.015 to ensure a quick and efficient delivery of disability and medical benefits to an injured worker, the parties are under an implied duty to act reasonably and fairly. See Zekanovic v. Am. II, Corp., 208 So. 3d 851 (Fla. 1st DCA 2017); Gonzalez v. Quinco Elec. Inc., 171 So. 3d 153 (Fla. 1st DCA 2015). Here, the JCC determined that as a result of its unreasonable delay, the E/C failed to provide the alternate physician. CSE exists to support this factual finding. In light of the importance of the timely provision of medical treatment and the question of statutory interpretation presented, we certify to the Florida Supreme Court the following as a question of great public importance:WHETHER AN E/C’S DUTY TO TIMELY FURNISH MEDICAL TREATMENT UNDER SECTION 440.13(2), WHICH INCLUDES A CLAIMANT’S RIGHT TO A ONE-TIME CHANGE OF PHYSICIAN DURING THE COURSE OF SUCH TREATMENT PURSUANT TO SUBSECTION (2)(f), IS FULFILLED SOLELY BY TIMELY AUTHORIZING AN ALTERNATE PHYSICIAN TO TREAT THE CLAIMANT OR WHETHER—IN ORDER TO RETAIN ITS RIGHT OF SELECTION AFTER TIMELY AUTHORIZING THE ALTERNATE PHYSICIAN TO TREAT THE CLAIMANT—THE E/C 5 We acknowledge that multiple factors will be relevant in a JCC’s determination of whether the E/C “failed to provide” the alternate physician such as: geographical availability of physicians; office policies of individual physicians; requirement of medical record review by physician before acceptance of new patients; efforts of the carrier; exigency of injured workers’ medical condition; and treatment needs, among others. MUST ACTUALLY PROVIDE THE CLAIMANT AN APPOINTMENT DATE WITH THE AUTHORIZED ALTERNATE PHYSICIAN?ConclusionUpon a written request to the E/C, section 440.13(2)(f) entitles an injured worker to a one-time change of physician. The E/C controls selection if the alternate physician is authorized within five days of receipt of the request. However, the E/C forfeits the right of selection if it subsequently fails to provide the alternate physician by unreasonable delay in acquisition of an appointment date. Thus, we AFFIRM but CERTIFY a question of great public importance. MAKAR, J., concurs; WINOKUR, J., concurs in part and dissents in part with opinion._____________________________Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331._____________________________WINOKUR, J., concurring in part, dissenting in part.1 The majority makes a compelling argument that its interpretation promotes the “spirit” of the workers’ compensation law, which requires expeditious provision of medical services for injured workers, by preventing a carrier from “[sitting] on its hands” when it should be attempting to secure medical care for an injured worker. But I find that neither the applicable statute nor controlling case law supports the majority’s interpretation,1 I concur in the majority’s decision to certify a question of great public importance. I otherwise dissent. The majority makes a compelling argument that its interpretation promotes the “spirit” of the workers’ compensation law, which requires expeditious provision of medical services for injured workers, by preventing a carrier from “[sitting] on its hands” when it should be attempting to secure medical care for an injured worker. But I find that neither the applicable statute nor controlling case law supports the majority’s interpretation,1 I concur in the majority’s decision to certify a question of great public importance. I otherwise dissent.irrespective of its value as good public policy. As such, I believe we must reverse the order under review.The statutory provision under review states as follows:Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident. Upon the granting of a change of physician, the originally authorized physician in the same specialty as the changed physician shall become deauthorized upon written notification by the employer or carrier. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary. § 440.13(2)(f), Fla. Stat. (emphasis added). The dispute here involves the third sentence, which requires a carrier to “authorize” an alternative physician, and the fourth sentence, which gives the employee the right to select his or her own physician if the carrier fails to “provide” a change of physician. The majority, consistent with this Court’s case law, reads the third sentence as placing an obligation on the carrier to identify a new physician and inform the employee of its authorization within five days after receipt of the request for change of physician. But the majority goes on to read the next sentence as setting a separate, additional obligation on the carrier to “provide” the change of physician to the employee. According to the majority, this additional obligation requires the carrier to obtain an appointment for the employee with the new physician, and to do so within a “reasonable” time. I find that neither the structure of the statutory provision, nor the case law applying it, supports this interpretation. I. The structure of section 440.13(2)(f)Sentences three and four, read reasonably, do not place separate obligations on carriers. The third sentence does place an obligation on carriers: the carrier “shall authorize” an alternate physician within five days after receipt of a change-of-physician request.2 Case law, discussed below, already establishes contours of this requirement. However, the fourth sentence does not place a requirement on carriers. Instead, it places a sanction on a carrier that fails to meet its obligations under the third sentence: if the carrier does not comply with the third sentence, then it loses the right to name an alternate physician.If the Legislature wished to place an additional obligation on carriers in the fourth sentence, it stands to reason that it would have used the same type of mandatory language, such as “the carrier shall provide a change of physician.”3 Instead, the fourth sentence is negative: if the carrier fails to provide a change of physician, then the employee may select his or her own. In other words, the structure of the third and fourth sentences shows that it creates an obligation, and then creates a sanction for failure to meet that obligation. I submit that an interpretation creating separate obligations disregards the structure of the paragraph. The majority reasons that the third and fourth sentence cannot refer to the same obligation because it uses different words—authorize an alternative physician versus provide a2 The word “shall” is generally interpreted to “impose a mandatory duty.” Johnson v. Johnson, 88 So. 3d 335, 338 (Fla. 2d DCA 2012). See also Dawson v. Clerk of Circuit Court-Hillsborough Cty., 991 So. 2d 407, 409 (Fla. 1st DCA 2008) (“The use of the word ‘shall’ in . . . section 440.13(2)(f) means that this one-time change is mandatory[.]”).3 It also stands to reason that the Legislature would have placed a specific time limitation on this requirement. The majority’s interpretation requires judges to divine a “reasonable time period” in which the carrier is required to set an appointment with the alternate physician. Considering that the statute sets forth a specific time period in which the carrier is required to authorize an alternate physician, it seems problematic that it implied a separate obligation without establishing a time period, leaving it to judges to determine whether the amount of time was “reasonable.” change of physician—because “[t]he Legislature’s use of different terms in different sections of the same statute is strong evidence that different meanings were intended.” This maxim of statutory interpretation is generally known as the presumption of consistent usage. See In re Failla, 838 F.3d 1170, 1176-77 (11th Cir. 2016) (“The presumption of consistent usage instructs that ‘[a] word or phrase is presumed to bear the same meaning throughout a text’ and that ‘a material variation in terms suggests a variation in meaning.’” (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170 (2012))). See also Carlson v. State, 227 So. 3d 1261, 1267 (Fla. 1st DCA 2017) (holding that “[w]e typically view the Legislature’s use of varied language in the same statute as a sign the Legislature intended varied things”). I disagree that this maxim should apply here. In Carlson, we noted that “[t]his rule of interpretation is far from absolute” Id. The presumption of consistent usage, we explained, “‘assumes a perfection of drafting that, as an empirical matter, is not often achieved.’ A. Scalia & B. Garner at 170. For whatever reasons, ‘drafters more than rarely use the same word to denote different concepts, and often . . . use different words to denote the same concept.’” Id. This observation applies here. Again, the most reasonable reading of the paragraph is that the third sentence imposes a requirement on carriers, and the fourth sentence imposes a sanction on the carrier if it does not comply with that requirement. While it used different words to describe the carrier’s obligation, the structure of the paragraph shows that the fourth sentence does not impose an additional obligation. See, e.g., Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499 U.S. 117, 129 (1991) (stating that “canon[s] do[] not control . . . when the whole context dictates a different conclusion”). This conclusion is supported by the fact that the statute is inexact in other places. For example, the disputed provisions do not even specify the same object: the third sentence requires a carrier to authorize “an alternative physician,” while the fourth sentence sanctions the carrier if it fails to provide “a change of physician.” In spite of the different language, the majority does not dispute that the statute means the same thing when it refers to an “alternative physician” in one sentence and a “change of physician” in the next. It does not appear that the drafters of this provision were overly concerned about consistent usage.4 Finally, it should be noted that the statute appears to misuse the word “alternative” (“alternative physician”) when it seems to have meant “alternate.” Compare Alternate, The American Heritage College Dictionary (3d ed. 1993) (defining “alternate” as something or someone that serves in “place of another”), with Alternative, The American Heritage College Dictionary (3d ed. 1993) (defining “alternative” as “[t]he choice between two mutually exclusive possibilities[,]” whereby the second option does not replace the first). I submit that we err in attributing excessive scrupulosity to the drafting of this paragraph. II. Case law interpreting § 440.13(2)(f)Our cases make it clear that a carrier’s obligation under paragraph (2)(f) is to inform the employee of the name of a new physician within five days of the request for a change of physician, and not to schedule an appointment with the physician. See HMSHost Corp./Gallagher Bassett Servs. Inc. v. Frederic, 102 So. 3d 668 (Fla. 1st DCA 2012) (holding that the “E/C’s informing Claimant of a particular doctor’s name within five days of receiving the request satisfied section 440.13(2)(f), even though the E/C did not contact the doctor”). See also Gadol v. Masoret Yehudit, Inc./U.S. Adm’r Claims, 132 So. 3d 939, 940 (Fla. 1st DCA 2014) (stating that Frederic holds that E/C timely responds by informing claimant of new doctor’s name and “does not require the E/C to actually contact or schedule an appointment with the new doctor”); Harrell v. Citrus Cty. Sch. Bd., 25 So. 3d 675, 678 (Fla. 1st DCA 2010) (noting that “[t]o timely respond to a claimant’s request, an 4 Moreover, other paragraphs of the same subsection provide a similar obligation on the part of the carrier to “furnish” treatment to the employee, which appears synonymous with “provide.” See § 440.13(2)(a) & (2)(c), Fla. Stat. (requiring the employer to “furnish to the employee such medically necessary remedial treatment . . . .” and prohibiting the employee from recovering certain expenses unless he or she has requested the employer to “furnish that initial treatment or service” and the employer has failed to do so). Again, the subsection appears to use different words when referring to the essentially the same thing. E/C is not required to schedule an appointment with the newly authorized physician”). In short, we have consistently defined the extent of a carrier’s obligations under section 440.13(2)(f), Florida Statutes, which does not include the obligation proposed by the majority.The majority states that these authorities merely set out the carrier’s obligation to “authorize” a change of physician for the employee, whereas the requirement it discusses is a separate obligation to “provide” a change of physician. I disagree for two reasons. First, as stated above, I find that this interpretation is inconsistent with the statute. Second, I believe that each of the case noted above sets forth the entirety of a carrier’s obligations under paragraph (2)(f). No case implies that the fourth sentence of the paragraph imposes requirements additional to the ones they set out. As such, I believe the majority opinion is inconsistent with this prior case law. We must apply the statute as written, regardless of whether we find that it would promote sound policy to interpret it otherwise. Because I believe the judge of compensation claims erred in interpreting section 440.13(2)(f), we should reverse the order under review._____________________________Vanessa J. Johnson and Warren K. Sponsler of Sponsler, Bishop, Koren & Hammer, P.A., Tampa, for Appellants.Nicolette E. Tsambis of Smith, Feddeler, Smith, P.A., Lakeland, for Appellee., 2020
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- Candelario CARRILLO, Appellant, v. CASE ENGINEERING, INC. and The Claims Center, Appellees. No. 1D09-6401. Decided: February 11, 2011 Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, and Susan W. Fox of Fox & Loquasto, P.A., Tampa, for Appellant. Tina R. Balentine of Ross Vecchio, P.A., Lakeland, for Appellees. Below the judge of compensation claims denied Candelario Carrillo's claims for permanent, total disability benefits, attorney's fees, interest, and costs; and ordered him to pay taxable costs to his former employer, Case Engineering, Inc., and to The Claims Center. We reverse the costs award as statutorily unauthorized; and reverse the order denying all of claimant's attorney's fees because, in defeating the affirmative defense contemplated by sections 440.09 and 440.105, the claimant prevailed on an issue of compensability. Mr. Carrillo's injury on a construction site on August 27, 1996, caused temporary, partial disability, and required medical care and treatment. The industrial accident resulted in temporary partial disability benefits, now long since paid in full, as well as in medical benefits that were still being provided when he filed the petition for additional benefits that began the present proceeding. The medical benefits are still payable because he prevailed in resisting the affirmative defense based on sections 440.09 and 440.105, “frequently referred to as the ‘fraud defense.’ “ Arreola v. Administrative Concepts, 17 So.3d 792, 793 (Fla. 1st DCA 2009). After the final hearing, the judge of compensation claims denied permanent total disability benefits and all other affirmative relief, but also expressly rejected the fraud defense, ruling that “the testimony of the Claimant is evasive, unreliable and inconsistent but does not rise to the level of fraud.” In the same order, the judge of compensation claims required the claimant to reimburse the other parties' costs. The present appeal follows subsequent denial of the claimant's motion for rehearing, to vacate, and for attorney's fees. In his motion for rehearing, Mr. Carrillo argued that no statute authorized an award of costs against a claimant for mere failure to prevail on a petition for benefits. In their response, Case Engineering, Inc., and The Claims Center conceded the costs award in their favor was error. Even so, the judge of compensation claims denied the motion for rehearing in toto, thus letting the costs award stand. We now reverse the costs award, because the Workers' Compensation Act in effect on the date of the accident did not authorize such an award. See Trent v. Charlotte Sanitation, 31 So.3d 938 (Fla. 1st DCA 2010) (reversing award of costs to prevailing employer and carrier in case involving an accident that took place before October 1, 2003); Kaloustian v. Tampa Armature Works, Inc., 5 So.3d 753, 754 (Fla. 1st DCA 2009) (concluding judge of compensation claims erred in applying after-enacted version of section 440.34(3) to pre-2003 accident as basis for awarding costs against claimant). The judge of compensation claims also refused to award attorney's fees to the claimant, even though (without identifying any subsection of 440.34) the petition for benefits had included a claim for attorney's fees based on the statute. The parties' prehearing stipulation specified section “440.34(3)(b)(c),” as the basis for the attorney's fees claim, a stated basis that did not change when Case Engineering, Inc., and The Claims Center were granted leave to amend the prehearing stipulation to raise the defense under sections 440.09 and 440.105 that the claimant eventually defeated. The rehearing motion again urged entitlement on the basis of section 440 .34(3)(c). Asserting entitlement to attorney's fees on the basis of section 440.34(3)(c) adequately preserved for appeal denial of the attorney's fees claimant sought for successfully defending against the fraud defense predicated on sections 440.09 and 440.105. Case Engineering, Inc., and The Claims Center argue unpersuasively otherwise, citing discussion of section 440.34(2) and (3) in the concurring opinion in Chandler v. Centex Rooney Construction Co., 15 So.3d 837, 839 (Fla. 1st DCA 2009). But the petition described in the Chandler concurring opinion-which does not, after all, constitute binding authority, see Lendsay v. Cotton, 123 So.2d 745, 746 (Fla. 3d DCA 1960) (“A concurring opinion has no binding effect as precedent; such an opinion represents only the personal view of the concurring judge and does not constitute the law of the case.”)-differs from the petition for benefits in the present case, in that the petition here relied on section 440.34 without limitation, although the parties' later stipulation concededly narrowed the statutory basis originally set forth. Section 440.34(3)(c), Florida Statutes (1995), provides that “a claimant shall be entitled to recover a reasonable attorney's fee from a carrier or employer ․ [i]n a proceeding in which a carrier or employer denies that an injury occurred for which compensation benefits are payable, and the claimant prevails on the issue of compensability.” Section 440.09(4)(a), Florida Statutes (2009), located within the “coverage” provisions of chapter 440, provides that “[a]n employee shall not be entitled to compensation or benefits under this chapter if any judge of compensation claims ․ determines that the employee has knowingly or intentionally engaged in any of the acts described in s. 440.105 or any criminal act for the purpose of securing workers' compensation benefits.” By order entered September 2, 2009, the judge of compensation claims granted a motion for leave to amend the pretrial stipulation to include the affirmative “defense of fraud per § 440.09(4), Fla. Stat.; § 440.105, Fla. Stat.; and § 440.09(a), Fla. Stat.” based on “discovery received after the filing of the pretrial stipulation.” When Case Engineering, Inc., and The Claims Center raised the defense based on sections 440.09 and 440.105, they placed coverage of the accident and resulting injuries-and thus compensability-at issue. If the opposing parties had succeeded in convincing the judge of compensation claims that Mr. Carrillo's testimony did rise “to the level of fraud,” his entitlement to continued palliative medical treatment at the employer's expense would have been extinguished in the present proceeding. The medical benefits were not being paid in “a different workers' compensation case.” Paulson v. Dixie County Emergency Med. Servs., 936 So.2d 1109, 1111 (Fla. 1st DCA 2006). The fact that the judge of compensation claims even addressed the fraud defense, after finding proof of the claim inadequate, attests to the independent significance a finding of fraud or misrepresentation would have had; and to the fact that the claimant's successfully resisting the defense protected his right to ongoing medical benefits. Defeating an affirmative defense alleging that an employee has knowingly or intentionally committed a disentitling act may, as here, preserve the right to receive workers' compensation benefits. See Chandler, 15 So.3d at 839 (Thomas, J., concurring) (“In my view, where a claimant properly preserves the issue and successfully defends against a misrepresentation allegation, and all other requisite factors are present, the claimant would be entitled to payment of an appropriate fee.”). Setting up the fraud defense under sections 440.09 and 440 .105 put compensability at issue-and did so at a time that the claimant was actually receiving palliative medical treatment not otherwise at issue. Accordingly, the award of costs to Case Engineering, Inc., and The Claims Center, along with the denial of attorney's fees for preserving entitlement to ongoing medical benefits are reversed, and the case is remanded for further proceedings consistent with this opinion. BENTON, C.J. PADOVANO and CLARK, JJ., Concur., 2011
- Mark BURGESS, Appellant, v. BUCKHEAD BEEF FLORIDA and Sentry Insurance Company, Appellees. No. 1D08-0987. Decided: May 11, 2009 Bradley Guy Smith of Smith, Feddeler, Smith & Miles, Lakeland, Susan W. Foxand Wendy Loquasto of Fox & Loquasto, Tallahassee, for Appellant. Gregory D. White and William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, Winter Park, for Appellee. Claimant appeals the Judge of Compensation Claims' (JCC) order denying psychiatric care, indemnity benefits, pain management, and all future benefits. Claimant argues the JCC abused his discretion by denying his multiple attempts to obtain deposition testimony from his medical witnesses. We agree, and reverse. Background Claimant was injured in two compensable workplace accidents while working for the Employer. Claimant filed two petitions for benefits (PFBs) requesting indemnity benefits, pain management and psychiatric care. The cases were consolidated and mediation occurred on December 4, 2007, at which time the parties did not resolve any of the pending issues. Following mediation, the parties exchanged pretrial statements, and on December 12, 2007, the JCC entered a pretrial order which noticed the merit hearing for (29 days later) January 10, 2008. In the pretrial stipulation, the parties listed and fully disclosed all relevant witnesses and documentary evidence. After mediation, both parties began efforts to complete discovery for the merit hearing scheduled for January 10, 2008. Beginning the day after mediation (December 5, 2007), Claimant's counsel made numerous phone calls to counsel for the employer/carrier (E/C) for the purpose of coordinating medical depositions for Claimant's case in chief. Counsel for the E/C refused to coordinate or schedule the depositions because he was going to be out of town. The E/C scheduled a psychiatric IME to occur on December 11, 2007. Claimant attended the E/C's IME without objection. Additionally, after the entry of the pretrial order, the E/C took the deposition of two doctors (with the cooperation of Claimant's counsel) on December 13, and December 17, 2007. Because the E/C refused to cooperate with his efforts, Claimant's counsel unilaterally scheduled the depositions of three doctors, to occur prior to the hearing. On December 14, 2007, Claimant filed a motion to take a post-hearing deposition of a fourth doctor, an authorized neurosurgeon. On December 17, 2007 (the day the E/C took its last deposition needed for trial), counsel for the E/C filed a motion for protective order seeking to quash all four of Claimant's scheduled depositions, arguing it would be impossible for him to attend because he had a scheduled vacation. Claimant filed a formal response requesting the JCC's permission to take the doctors' depositions. On December 21, 2007, the JCC entered an order granting the E/C's motion for protective order, quashing Claimant's notices of deposition, and denying an alternative request for continuance. The JCC denied Claimant's requested relief, primarily, because Claimant did not attempt to set the discovery before mediation. On January 7, 2008, Claimant filed another motion to continue so he could take the depositions which had been quashed by the JCC. The JCC denied all of Claimant's attempts to gather the needed testimony based on a per se application of a purported discovery cut-off. The merit hearing proceeded with Claimant testifying live. He was not allowed to introduce his intended medical testimony. Following the hearing, the JCC entered a final order denying all requested benefits and all future benefits to which Claimant could become entitled. In making these findings, the JCC relied almost exclusively on the depositions taken by the E/C after the purported discovery cut-off. Analysis Although this court decidedly does not condone violations of deadlines contained in pretrial orders (an occurrence not apparent in this case), in workers' compensation proceedings, even the testimony of undisclosed witnesses can be allowed into evidence upon a case-specific determination as to whether admission of the evidence would result in actual procedural prejudice to the objecting party. See Med. Logistics, Inc. v. Marchines, 911 So.2d 823, 824 (Fla. 1st DCA 2005) (citing Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981)). Here, the JCC's exclusion of testimony from properly disclosed witnesses, based on a per se application of his interpretation of the administrative rules, is not only antithetical to the analysis prescribed in Binger, but is also in direct conflict with the specific legislative intent of the Florida Workers' Compensation Law. See § 440.015, Fla. Stat. (2006) ( “It is the specific intent of the Legislature that workers' compensation cases shall be decided on their merits.”). The exclusion of evidence is a drastic remedy, which should occur only in the most compelling circumstances, and only after the JCC has made a case-specific determination as to whether the admission of the evidence would result in actual procedural prejudice to the objecting party. See Med. Logistics, Inc., 911 So.2d at 824. Here, the JCC quashed depositions set by Claimant, and denied all of Claimant's attempts to present medical testimony without considering any discretionary factors such as prejudice. In doing so, the JCC abused his discretion. The order of the JCC's order is REVERSED and the case REMANDED with instructions that the claims be reheard after allowing the Claimant sufficient time to complete the depositions that were quashed. PER CURIAM. VAN NORTWICK, PADOVANO, and CLARK, JJ., concur., 2009
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