FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                  _____________________________

                          No. 1D17-3926
                  _____________________________

MARINE MAX, INC., and
SEABRIGHT INSURANCE
COMPANY, et al.,

    Appellants,

    v.

CHARLES BLAIR,

    Appellee.
                  _____________________________


On appeal from an order of the Judge of Compensation Claims.
Diane B. Beck, Judge.

Date of Accident: October 22, 2010.

                          March 7, 2019


WINSOR, J.

     This case requires us to consider what happens when a
workers’ compensation claimant seeks care from a doctor who—as
a condition of continued treatment—demands compensation above
and beyond the statutory limits. Marine Max, Inc., and its workers’
compensation insurer (collectively, “Marine Max”), appeal an order
directing them to “authorize and pay” a doctor who not only
demanded compensation beyond limits the Legislature imposed
but also demanded those payments in advance. We affirm in part
and reverse in part.
    Charles Blair was injured when he fell off a ladder in 2010.
Marine Max treated the accident as compensable, and it
authorized Dr. Jonathan Yunis to provide treatment. Yunis
operated on Blair several times between 2010 and 2014, when
Yunis practiced with an outfit called Vascular Associates. Some of
Yunis’s services during this time were billed at statutory rates,
and some were billed at higher rates. There were apparently no
payment disputes.

     In 2015, Yunis left Vascular Associates to start his own
practice, the “Center for Hernia Repair.” Later, in 2017, Blair
sought additional treatment, still relating to the original accident.
He filed a new petition for benefits, asking to return to Yunis for a
new round of treatment. Unaware of Yunis’s departure from
Vascular Associates, the insurance adjuster told Blair he was
authorizing follow-up treatment with Yunis. The adjuster then
contacted Vascular Associates to set up an appointment. That is
when the adjuster learned that Yunis no longer worked there. And
when the adjuster contacted Yunis’s new practice—still trying to
make an appointment for Blair—he learned that the new practice
required payments beyond the statutory rates. He also learned
that the new practice required those above-statutory-rate amounts
paid in advance.

     Marine Max found the new terms unacceptable. There is no
indication that Marine Max tried to negotiate with Yunis’s new
practice or that negotiations could have been successful. 1 Instead,
Marine Max sought a doctor willing to work on acceptable payment
terms. In its formal response to Blair’s petition, Marine Max stated
that because Yunis would not accept statutory rates, it was
authorizing treatment with another physician. The adjuster then
scheduled an appointment for Blair to see that other physician, but
on counsel’s advice, Blair refused to go.



    1  Yunis did at one point testify that he would treat Blair for
free “[i]f he was now abandoned on the street with no insurance
and nobody to pay for anything,” but Blair’s situation never came
to that. Yunis did not treat Blair (for free or otherwise), which is
why this litigation continues.

                                 2
     The matter then went before the judge of compensation
claims. Blair argued that he had an existing patient-physician
relationship with Yunis and that Marine Max could not interfere
with that relationship by “deauthorizing” Yunis without statutory
authority. See generally City of Bartow v. Brewer, 

,
933 (Fla. 1st DCA 2005). And according to Blair, the statute
permits deauthorization only if the claimant is not making
appropriate progress in recuperation, see § 440.13(2)(d), Fla. Stat.,
or if the provider was engaged in a pattern or practice of
overutilization, see § 440.13(8)(b)2. A provider’s outright refusal to
accept the fee schedule, Blair continues, does not justify
deauthorization.

     Marine Max responded that payments beyond statutory rates
are allowed only if the employer agrees to pay the higher amount
and the provider “specifically agrees in writing to follow identified
procedures aimed at providing quality medical care to injured
workers at reasonable costs.” See § 440.13(13)(b), Fla. Stat.
According to Marine Max, because it had no agreement with Yunis,
it was left with only one real option: to provide medically necessary
care—as section 440.13(2)(a) required—by authorizing someone
else. Cf. Leon v. CSB Services, Inc., 

, 167 (Fla. 1st
DCA 2017) (holding that authorization of new doctor is required
when previous doctor “is no longer a viable option”).

     The JCC agreed with Blair and held that Marine Max’s
actions were “tantamount to a unilateral deauthorization.” See
generally 

. It noted that “[a]ny dispute as
to the applicability of the charges is within the exclusive preview
of [the Department of Financial Services]” and that Marine Max
“may still dispute the charges even if prepayment is required and
made.” The JCC then ordered Marine Max to “continue to
authorize and pay Dr. Yunis.” That led to this appeal.

     First, Marine Max correctly argues that the JCC had no
authority to order it to pay Yunis. Blair acknowledges as much; his
counsel noted at oral argument that “the judge probably made a
minor mistake” by including “the portion of the order that says
‘pay.’” See also Ans. Br. at 12 (“[T]he JCC does not have the
statutory authority to force the E/C to pay for medical services in
excess of fee schedule.”). Reimbursement is handled under section

                                  3
440.13(7), Florida Statutes, and all reimbursement disputes fall
under the exclusive jurisdiction of DFS. See § 440.13(11)(c), Fla.
Stat. (stating that DFS “has exclusive jurisdiction to decide any
matters concerning reimbursement”); see also Cook v. Palm Beach
Cty. Sch. Bd., 

, 620 (Fla. 1st DCA 2011) (holding JCCs
lack jurisdiction over payment disputes); Orange County v. Willis,

, 871 (Fla. 1st DCA 2008) (holding claimant “did not
have standing to enforce payment of the doctor’s bill”). Moreover,
even if the JCC could resolve payment disputes, it could not compel
prepayment, which chapter 440 does not contemplate for medical
treatment. The relevant statutes and rules use the term
“reimbursement,” see, e.g., § 440.13, Fla. Stat. (using the words
“reimburse” and “reimbursement” forty-seven times); Fla. Admin.
Code R. 69L-7.020 (“A carrier will reimburse a health care provider
either the [statutory fee schedule] or a mutually agreed upon
contract price.”), which is distinct from advance payment. 2
Although the dissent would affirm the order in its entirety
(including the prepayment requirement), we struggle to identify
any basis on which we could do so. We must reverse the order on
appeal to the extent it compels payment.

     We still must determine, though, whether the JCC was correct
to order Yunis’s continued authorization. We conclude that it was.
The only basis Marine Max offered to justify its doctor substitution
was Yunis’s insistence on particular financial terms. But a JCC’s
award of medically necessary care “is to be made without regard to


    2   The JCC was also wrong in assuming Marine Max could
prepay the demanded amounts and later seek relief through
administrative channels. The administrative dispute process
begins with an employer’s refusing to pay a provider’s bill (or
refusing to pay it in full), called “disallowance” (or “adjustment”).
See § 440.13(6), (8), Fla. Stat. But if Marine Max paid in advance
as a condition of service, Yunis would have no occasion to submit
a bill afterward. Moreover, section 440.13(7)(a)—which previously
allowed both employers and providers to initiate reimbursement
disputes at DFS—changed in 2016. It now allows only health care
providers to initiate those proceedings. Ch. 16-56, § 4, at 496, Laws
of Fla. So there is no entry point for an employer that prepaid too
much.

                                 4
the possibility that a payment dispute might arise between the
employer and the provider.” Tiznado v. Orlando Reg’l Healthcare
Sys., 

, 585-86 (Fla. 1st DCA 2000). The JCC was
therefore required to determine whether Yunis’s continued
authorization was “reasonable” and “medically necessary,” see
§ 440.13(2)(a), Fla. Stat., without considering the possibility (or
even probability) that Yunis and Marine Max would never reach
agreement on terms. The JCC found that Blair had established a
satisfactory patient-physician relationship with Yunis, and that
Marine Max had “not established a valid reason for
deauthorization of Dr. Yunis under these circumstances.” These
conclusions were supported by competent substantial evidence. We
therefore must affirm the order to the extent it requires Yunis’s
continued authorization.

      Marine Max contends it is illogical to require continued
authorization of a doctor unwilling to treat the claimant on
statutory terms. That point is not without force, but the law limits
the bases on which an employer may officially deauthorize a
previously authorized physician. Ordinarily a claimant unable to
receive care from the authorized physician (because of payment
disputes or otherwise) might seek a new authorized physician, cf.,
e.g., 

(noting that claimant appealed denial
of new authorized treater after old authorized treater was
“henceforth unwilling to treat” claimant), but Blair has resisted
that approach, and it is not up to us to weigh the usefulness of his
demand for Yunis’s continued authorization.

     Nevertheless, it may well turn out that the continued
authorization does not help Blair, assuming Yunis remains
unwilling to provide treatment within the statutory compensation
limits and Marine Max remains unwilling to pay beyond the
statutory compensation limits (or to pay in advance).
Authorization cannot help a claimant who remains untreated, and
it should go without saying that neither Marine Max nor any judge
of compensation claims can force Yunis to provide treatment he
does not wish to provide. Marine Max can (and must, for now)
continue to “authorize” Yunis, but all authorization does is allow
Yunis to demand compensation if he chooses to treat Blair. See
§ 440.13(3)(a), Fla. Stat. (“As a condition to eligibility for payment
under this chapter, a health care provider who renders services

                                  5
must receive authorization from the carrier before providing
treatment.”). If Yunis elects to provide treatment, his
authorization will permit him to seek compensation under Chapter
440. See 

(noting that authorized providers “have
recourse against the employer or carrier for payment for services
rendered in accordance with this chapter”). If he and Marine Max
reach a different agreement, he can operate under that agreement.
See 

But if he remains unwilling to proceed
under the system the Legislature created (with its attendant
limitations on compensation, see, e.g., id.), no employer can force
him to do otherwise. On the other hand, if Blair concludes that any
ongoing refusal to treat means Yunis “is no longer a viable option,”
Blair can seek authorization of a replacement physician, see Leon,

—a remedy Marine Max has already pursued for
Blair. Cf. also Lewis v. Town & Country Auto Body Shop, 

403, 406 (Fla. 1st DCA 1984) (“[I]f the authorized physician
declines to see him further, claimant is entitled to have another
physician authorized to provide such medical care.”).

      We have not, of course, overlooked this court’s cases
recognizing the importance of the physician-claimant relationship.
See, e.g., Stuckey v. Eagle Pest Control Co., Inc., 

,
351 (Fla. 1st DCA 1988); Cal Kovens Constr. v. Lott, 

(Fla. 1st DCA 1985). But none of those cases holds that an
employer must prepay above-schedule rates to avoid a potential
disruption of that relationship. Although the dissent never
explicitly says so, its contrary rule must be that employers have no
choice but to prepay above-scheduled rates providers demand, at
least until a judge thinks the providers’ demands have gone too
far. 3 But the Legislature—not DCA judges—decides the



    3 To the extent the dissent’s conclusion relies on some estoppel
concept, we note that estoppel is an affirmative defense that must
be asserted below, see, e.g., Teco Energy, Inc. v. Williams, 

816, 823 (Fla. 1st DCA 2017) (noting that estoppel is an
affirmative defense that “must be plead carefully or forever
waived”), reh’g denied (Feb. 5, 2018)—and that Blair did not plead
estoppel below, made no estoppel argument below, and does not
argue estoppel here. Indeed, as Blair acknowledges in his brief,

                                 6
permissible range of rates. And the Legislature has said that
“[f]ees charged for remedial treatment, care, and attendance, . . .
may not exceed the applicable fee schedules adopted under this
chapter and department rule.” § 440.13(13)(b), Fla. Stat. We
therefore must reverse the order to the extent it commands Marine
Max to pay fees that do “exceed the applicable fee schedule.” 

part and REVERSED in part.

JAY, J., concurs; WOLF, 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.
               _____________________________




“[t]he requirements of estoppel are not relevant to the outcome of
this case.” Ans. Br. at 32.

                                 7
WOLF, J., concurring in part and dissenting in part.

     I concur in the portion of the majority opinion that requires
continued authorization for Dr. Yunis to treat the Claimant
because the Employer/Carrier (E/C) failed to prove a valid reason
for not continuing to provide treatment with the authorized doctor.
I dissent from the portion of the opinion that determines even
though Dr. Yunis is authorized, the Carrier is not necessarily
required to provide the treatment and the E/C may yet again
designate an alternative physician.

     The majority essentially frames the issue in this case as,
“what happens when a workers’ compensation claimant demands
that an employer ‘authorize’ a doctor who is unwilling to provide
treatment for rates within statutory limits.” The issue in this case,
however, is whether an E/C should be required to continue
medically necessary treatment with an authorized physician when
the carrier has failed to prove any change of circumstance that
would justify a de facto deauthorization of the treating physician.

    The majority’s statement of the issue switches the focus of the
inquiry to an issue that we should not address in this case.

     The change in focus leads the majority to reach the
remarkable conclusion that the Claimant won the right to have a
designation of “authorized” placed by Dr. Yunis’s name, even
though the Claimant still cannot receive treatment from the
physician because the JCC cannot require the Carrier to pay the
physician. This renders the opinion meaningless. Under the facts
of this case, I would hold that the Carrier is required to continue
to provide treatment with Dr. Yunis, regardless of Dr. Yunis’
willingness to provide treatment for rates within the statutory
limits because that issue is not properly before us.

                                 Facts
     In addition to the facts stated in the majority opinion, I believe
the following facts are significant and dispositive of this case:

    1. The Carrier initially authorized Dr. Yunis in 2010.

    2. Claimant received treatment from Dr. Yunis from 2010
    through 2014.
                                  8
    3. The fee agreement between the E/C and Dr. Yunis was
    introduced into evidence and indicated that the E/C
    agreed to pay Dr. Yunis in excess of the fee schedule for
    services including non-operative regular visits.

    4. Dr. Yunis testified that he has never accepted the fee
    schedule. 4

    5. No evidence was introduced concerning what fees Dr.
    Yunis was presently seeking. Thus, there is no proof that
    Dr. Yunis was seeking fees that were any higher than
    what the E/C previously paid.

    6. In fact, Dr. Yunis’s office manager indicated that she
    offered to provide the doctor’s fee schedule for the E/C’s
    review, but there is no indication that her offer was
    accepted.

    7. In addition, when Dr. Yunis asked the Carrier during
    his deposition if it wanted him to accept the Carrier’s fee
    schedule, the Carrier said all we want to know is whether
    you take the fee schedule or not.

    8. Between 2014 and 2017, a new servicing agent began
    representing the E/C.

    9. The JCC found there has been no negotiation by the
    Carrier regarding the fees, and “[t]he only reason for not
    deviating from the fee schedule at this point is because
    there is a new third party administrator and owner of Sea
    Bright, and they don’t want to anymore.” (emphasis
    added). This finding is supported by the evidence adduced
    in this case.



    4 While the adjuster testified that the E/C had previously paid
Dr. Yunis for some services in accordance with the fee schedule,
the specific services were not identified and this testimony was
obviously not accepted by the fact finder, the JCC. In addition,
there is no evidence that Dr. Yunis would not provide these
services for the same fee that he previously had been charging.

                                9
    10. The E/C’s only asserted defense to deauthorization
    was, “Dr. Yunis is no longer accepting workers’
    compensation fee schedule,” a defense that is belied by
    the uncontradicted evidence that Dr. Yunis has never
    taken the fee schedule.

    11. The E/C did not raise the issue of prepayment as a
    defense, and the statute does not specifically prohibit it.

    12. There is no indication in the record that the Carrier
    ever attempted to negotiate with the doctor.

    13. Claimant made a request for medically necessary
    treatment at the beginning of 2017 and has not to this
    date received treatment with his authorized doctor. The
    only doctor authorized by the Carrier was over an hour
    and a half drive away from Claimant’s home and work.

       Import of Existing Statutory Law and Case Law
     The majority opinion fails to recognize the significance of over
30 years of continuous decisions from this court recognizing the
importance of providing a continued course of treatment once a
satisfactory patient-physician relationship is established.

     As early as 1985, in Cal Kovens Construction v. Lott, 

249 (Fla. 1st DCA 1985), this court recognized the importance
of the physician-claimant relationship and emphasized the burden
was on the carrier to show good cause sufficient to require a change
in ongoing medical treatment.

     In Stuckey v. Eagle Pest Control Co., Inc., 

, 351
(Fla. 1st DCA 1988), we stated, “[O]nce an injured employee
establishes a satisfactory physician-patient relationship with an
authorized physician, the E/C may not deauthorize that physician
without the employee’s prior agreement or without approval of a
[JCC] . . . . In this situation the focus should be on the question of
why an authorized physician should no longer provide care,
thereby severing an established physician-patient relationship.”
Stuckey specifically stated that “the E/C must then show good
cause for such action.” 

Thus, the E/C bears
the burden of demonstrating good cause to sever an existing
patient relationship. The opinion fails to recognize that under
                                 10
statutory law and case law, the E/C has a significant burden to
demonstrate a change of facts that provide a legal reason for
severing the physician-patient relationship.

     While section 440.13, Florida Statutes, has been amended so
that it no longer requires prior approval from the JCC to
deauthorize a doctor, the underlying premise that the E/C cannot
deauthorize a physician without proving that doing so is in the best
interest of the claimant is still controlling. Terners of Miami Corp.
v. Busot, 

(Fla. 1st DCA 2000); see also State Attorney
v. Johnson, 

(Fla. 1st DCA 2000) (recognizing statute
did not change the substantive test for deauthorization). In fact,
we recently recognized the failure to continue to provide treatment
to the claimant with a previously authorized doctor constituted a
de facto “deauthorization,” and the failure of the carrier to prove a
statutory reason for deauthorization meant the E/C was required
to continue to provide the sought-after treatment. See Hernandez
v. Hialeah Solid Waste Dep’t, 

(Fla. 1st DCA 2018);
see also Williams v. Triple J Enters., 

(Fla. 1st DCA
1995).

     The present statutory framework also recognizes the
importance of the physician-patient relationship by only allowing
the employer “to transfer the care of an injured employee from the
attending health care provider if an independent medical
examination determines that the employee is not making
appropriate progress in recuperation.” § 440.13(2)(d), Fla. Stat.
This statutory burden was unmet by the carrier in Hernandez, and
it was unmet by the E/C here.

    Sufficiency of the Evidence and Issue to be Decided
     While the majority indicates that a doctor’s failure to accept
the fee schedule may be considered a refusal to treat, thus
justifying deauthorization, it is unnecessary for us to reach that
specific issue in this case. Here, the E/C failed to prove any change
of circumstance, including any increased fee requirement, that
might justify a de facto deauthorization of the doctor.

    The written agreement for treatment in this case establishes
that the previous third party administrator had been paying Dr.
Yunis in excess of the fee schedule. There was not one shred of

                                 11
evidence presented that his present fee schedule was one penny
more than what had previously been paid. In fact, the evidence
demonstrates that the Carrier did not accept a copy of the doctor’s
fee schedule when the doctor offered it and made no effort to
negotiate with the doctor to preserve the physician-claimant
relationship. The JCC specifically found the only reason for the
E/C’s deauthorization was that the new third party administrator
no longer wished to deviate from the fee schedule. This is not a
valid reason for de facto deauthorization. Thus, it is unnecessary
for us to reach the issue as it is framed by the majority. 5

              What is the Guidance on Remand?
    As previously stated, the majority opinion finds that the
doctor is authorized but the Carrier does not have to pay him.

    Based on the majority’s decision, the JCC, the Claimant, and
the E/C are left guessing at what the next step is in this case. No
practical relief has been granted to the Claimant.

    If the Claimant wishes to treat with Dr. Yunis, his authorized
physician, and the E/C refuses to set up an appointment with the
authorized doctor, the Claimant is back to square one. He cannot
see his treating physician because the E/C will not set up an
appointment. The E/C is left guessing whether they need to set up
an appointment with Dr. Yunis or whether they can continue to
deny treatment (because they are not required to pay) and
potentially subject themselves to a new petition for benefits with
associated penalties and fees.

    In addition, the majority implies that the E/C is free to take
the same action it previously took, refusing to authorize a new
doctor, because Dr. Yunis failed to take the fee schedule. The E/C
has already lost on this issue. The doctrines of law of the case and
res judicata apply to workers’ compensation cases. Boynton
Landscape v. Dickinson, 

(Fla. 1st DCA 2000); S.

    5  It is up to a later panel of this court or the Legislature to
address situations where there is an initial refusal to treat within
the fee schedule or where there is evidence that a doctor has raised
his or her fees over and above the amount previously agreed to
between the E/C and the doctor. That is not the case here.

                                12
Bell Tel. & Tel. Co. v. Blackstock, 

(Fla. 1st DCA
1982). Absent new evidence that could not have been discovered
prior to the last hearing, the E/C should not be allowed to take the
same actions that the JCC already found to be unjustified.

    The Claimant should not be forced to accept the E/C’s refusal
to pay Dr. Yunis where a JCC heard all the evidence and found
there was no valid reason for de facto deauthorization and that
such action was not in the best interest of the Claimant. The JCC
specifically stated:

    24. The only reason for [the E/C] not deviating from the
    fee schedule at this point is because there is a new third
    party administrator . . . , and they don’t want to anymore.

The JCC additionally found that it was in the best interest of the
Claimant to continue to see Dr. Yunis. In Factual Finding #3, the
JCC found:

    3. Claimant testified that he was authorized to treat with
    Dr. Yunis for his hernia condition and Dr. Yunis has
    performed three surgeries for his condition. Claimant
    tried to get a follow up appointment in the past year with
    Dr. Yunis and could not. He is concerned about his
    condition. Claimant understands that E/C has offered a
    doctor in St. Petersburg, Florida but he does not agree
    with a transfer to that doctor. He was told not to attend
    that appointment. Claimant said he does not receive pay
    when he takes off work and he lives in Sarasota, Florida
    where Dr. Yunis’ office is located. He is comfortable with
    Dr. Yunis and does not want a new doctor.

    The Claimant should be free to enforce the JCC’s
determination that Dr. Yunis is still authorized. Any assertion in
the majority opinion indicating otherwise is mere dicta.

        Necessary Medical Care Should be Provided
  Notwithstanding Potential Disputes Regarding Cost of
                          Treatment
     The JCC and the majority each address the potential remedies
for the E/C if they still have a problem with Dr. Yunis’s fee
schedule. They reach opposite conclusions: the JCC found that the
                                13
E/C may pursue administrative remedies, and the majority
indicated that the statute does not contemplate a remedy for the
E/C under these circumstances. This question of a fee dispute is
not properly before us, and any discussion concerning potential
outcomes in a future dispute should not have been included in
either the JCC’s order or the majority opinion. 6 As previously
stated, this case is only about the ability to get continued
treatment with the authorized doctor. The E/C-physician dispute
is an inappropriate consideration in determining whether the
Claimant is entitled to continued medical treatment. If there is a
lack of remedy for the E/C, that should be addressed by the
Legislature, not this court.

    In Tiznado v. Orlando Regional Healthcare System, 

, 586 (Fla. 1st DCA 2000), we specifically determined that
where the care is medically necessary, “medical care should have
been awarded” notwithstanding a potential payment dispute that
might arise.

     In this case, the JCC was simply requiring the E/C to pay for
the care that the Claimant was entitled to receive. Such a decision
is consistent with our case law. See Williams, 

(requiring payment to Claimant for necessary medications
notwithstanding potential utilization review).

    The E/C’s order to pay for the treatment did nothing more
than require provision of treatment. The JCC did not order a
specific amount be paid. In addition, we are not looking at
reimbursement or overutilization. The JCC simply addressed the



    6  The majority appears to be concerned that the E/C has no
remedy. While I am unsure whether I agree with this analysis, if
there is a statutory gap that fails to provide the E/C a proper
remedy, that is for the Legislature to fix and not a valid reason for
this court to disrupt the existing physician-claimant relationship.
In addition, in light of the findings concerning the Carrier’s failure
to negotiate, it is unclear to me that any claim by the E/C was not
waived or is indeed premature.


                                 14
issue in this case, continued treatment with an authorized
physician. 7 I would affirm this order in its totality.



                 _____________________________



Robert B. Griffis of Jones, Hurley, and Hand, P.A., Orlando, for
Appellants.

Kimberly A. Hill of Kimberly A. Hill, P.L., Ft. Lauderdale, and Eric
M. Christiansen of Lancaster & Eure, P.A., Sarasota, for Appellee.




    7 If Dr. Yunis attempts to raise his fees in the future to an
amount greater than the fees he is presently willing to accept, this
would constitute new circumstances that may allow the E/C to
properly raise the issue as framed by the majority. As previously
stated, it is the failure of proof by the E/C that precludes us from
addressing the issue in this case.

                                15