author: THOMAS, J.

text:
    Manuel CESPEDES, Jr., Appellant, v. YELLOW TRANSPORTATION, INC. (URC/GALLAGHER BASSETT SERVICES, INC., Appellees.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2013.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    William H. Rogner and Scott B. Miller of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appel-lees.
   ON MOTION FOR REHEARING AND MOTION FOR REHEARING EN BANC

THOMAS, J.

We deny Appellees’ Motion for Rehearing and Motion for Rehearing En Banc, withdraw our original opinion dated April 24, 2013, and substitute this opinion in its place.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) that denies in part his claims for workers’ compensation benefits. Claimant argues the JCC erred by (1) improperly shifting onto Claimant the burden to prove the compen-sable injury was the major contributing cause (MCC) of his disability and need for surgery; (2) finding that the medical services at issue did not constitute “emergency services and care” and that lack of notice to the Employer/Carrier (E/C) rendered the surgery non-compensable under chapter 440; and (3) finding the opinion testimony from the emergency room physician, Dr. Acebal, is not admissible pursuant to the “self-help” provisions contained in chapter 440.

We affirm without further comment the JCC’s conclusion that opinion testimony from Dr. Acebal is not admissible evidence under the “self-help” provisions contained in chapter 440. But, we nevertheless conclude that under the facts and procedural history of this case, the JCC employed incorrect legal standards in conducting the major contributing cause analysis required by section 440.09(l)(a)-(b), Florida Statutes (2005). We further conclude that the JCC also used an incorrect legal test to determine whether the services and care provided by Dr. Acebal were “emergency services and care,” compensable under chapter 440. Because of these errors, and based on our conclusion that the opinion testimony of those physicians who have provided compensable emergency services and care are admissible as “authorized treating provider[s]” under section 440.13(5)(e), Florida Statutes, we also conclude that the JCC used improper legal standards in determining that Dr. Acebal’s medical opinions were inadmissible in the proceedings below. Based on these errors, we reverse the order on appeal, and remand for additional proceedings and additional factual findings based on the correct legal standards announced herein and the evidence already offered in the proceedings below.

BACKGROUND

On March 20, 2006, Claimant injured his lower back in the course and scope of his employment. The E/C accepted Claimant’s accident as compensable, and authorized treatment of his lumbar spine with Dr. Christopher Brown. Claimant declined surgical treatment offered by Dr. Brown, and in September 2006, Dr. Brown placed Claimant at maximum medical improvement (MMI) with a 6% permanent impairment rating for an L5-S1 disc herniation. This lower back condition was accepted as compensable by the E/C.

From 2006 through 2010, Claimant returned to Dr. Brown on several occasions due to recurrent low back pain; Dr. Brown continued to recommend surgical intervention for the compensable lower back injury, which Claimant declined. In December 2010, Claimant agreed to undergo epidural steroid injections, and was referred to Dr. Joel Salamon for pain management and the first injection, which was authorized by the E/C. Dr. Brown saw Claimant twice after his pain management referral, and on those visits Claimant reported significant improvement. Claimant was scheduled for a second injection, but before receiving this second injection he developed significant back and leg pain and had difficulty standing.

On March 19, 2011, Claimant was admitted to and treated in the emergency room at Kendall Regional Medical Center (KRMC) with a sedative and an injectable pain medication before discharge. Claimant’s pain resumed the following day, and he returned to the KRMC emergency room and was admitted under the care of Dr. Pablo Acebal, a neurosurgeon. Dr. Acebal evaluated Claimant and ordered an MRI, which revealed a massive herniated disc at L5-S1 which was severely compressing the nerve roots of the spine. Based on his observation that Claimant was .immobilized and in “unbearable pain,” Dr. Acebal recommended prompt surgery at L5-S1 to treat the condition.

The same day, Dr. Acebal contacted Dr. Brown and, as a professional courtesy, offered to transfer Claimant’s surgery to Dr. Brown. Dr. Acebal advised Dr. Brown that Claimant needed surgery because he had a “huge disc.” According to Dr. Ace-bal, had Dr. Brown given any indication that he would have operated on Claimant “quite quickly” (meaning the next day), he would have transferred Claimant to Dr. Brown’s care. Nevertheless, Dr. Brown advised Dr. Acebal that if Claimant’s condition was emergent and required surgery, “he probably shouldn’t be transferred.” In deposition, Dr. Brown opined that if Claimant could have been transferred, as offered by Dr. Acebal, then the surgery would be “more of an elective type of thing” and “he really doesn’t need to be transferred,” because Claimant could be treated on an outpatient basis. On March 22, 2011, Dr. Acebal performed surgery on Claimant at the L5-S1 level. On March 23, 2011, the E/C denied any future medical care and deauthorized Dr. Brown.

Thereafter, Claimant filed a petition for benefits seeking, inter alia, temporary indemnity benefits (as he remained on modified work duty following the surgery), authorization for continued treatment with Dr. Brown, and compensability of the surgery performed by Dr. Acebal. The E/C contested all of these claims based on the following defenses: • “industrial accident not the MCC of temporary disability; industrial accident no longer the MCC of the current need for treatment as Claimant underwent surgery with an unauthorized physician; such surgery was unauthorized and did not constitute emergency care; carrier not placed on timely notice of alleged emergency care; and surgery not medically necessary or causally related to accident.”

At hearing, Claimant attempted to offer into evidence the opinion testimony of Dr. Acebal. The E/C objected, arguing that Dr. Acebal’s medical opinion was not admissible under section 440.18(5)(e) because he was not an “authorized physician, independent medical examiner, or expert medical advisor.” The JCC sustained the E/C’s objection, concluding that Dr. Acebal’s medical opinion was inadmissible, and admitted the doctor’s deposition for “fact purposes only.”

The E/C presented deposition testimony of Dr. Brown that the workplace accident was not the MCC of Claimant’s surgery, and that he could not determine the MCC of the need for the surgery, because he was unaware of any other potential causes of Claimant’s, need for treatment. Dr. Brown further testified' that, although he did not observe Claimant or his condition at KRMC, he concluded Claimant’s surgery was not performed on an emergency basis. According to Dr. Brown, an “emergent reason for surgery would be cauda equina syndrome where a patient would either lose control of his bowel or bladder and have a large disc compressing the nerves that control those organs, and in the absence of such signs, there is no need for an immediate surgery.” The E/C also presented testimony from Dr. Salamon, Claimant’s pain management physician, that back pain is “never” an emergency.

In the order on review, the JCC found that Dr. Brown diagnosed Claimant with a “work related L5-S1 disk herniation and radiculopathy,” and that the “E/C has agreed, and did stipulate” to the compens-ability of Claimant’s low back condition. The JCC also found that there were no identifiable causes for Claimant’s low back condition other than the compensable workplace injury and a pre-existing spon-dylosis (which Dr. Brown opined contributed 10% to Claimant’s symptoms). The JCC further found that the E/C failed to show a break in the causal chain regarding the compensability of Claimant’s back, injury, and the JCC rejected “any medical opinion in evidence” suggesting that Claimant suffered a subsequent injury or accident. Moreover, the JCC found that there was insufficient record evidence to support the E/C’s contention that the “accident is no longer the major contributing cause of the need for treatment!/]” The JCC awarded ongoing treatment with Dr. Brown. None of the foregoing findings, each favorable to Claimant and resulting in an award of benefits, have been challenged by the E/C by way of cross-appeal.

Notwithstanding the foregoing. factual issues resolved in Claimant’s favor, however, the JCC found that Claimant failed to prove the compensable injury was the MCC of the need for surgery. The JCC further found that Claimant failed to satisfy his burden to persuade the JCC that Dr. Acebal’s “unauthorized” care and services constituted “emergency services and care.” In addition, the JCC found the E/C did not receive timely notice of the alleged emergency care. Consequently, the JCC denied compensability of the surgery performed by Dr. Acebal and the temporary indemnity benefits associated with the surgery.

ANALYSIS

The Compensable Injury

Once compensability of an injury is established, sc carrier can no longer contest that the accident is the MCC of the injury. See Engler v. Am. Friends of Hebrew Univ., 18 So.3d 613, 614 (Fla. 1st DCA 2009) (“Once compensability is established, an E/C can no longer contest that the accident is the MCC of the injuries at issue.”); § 440.13(1)(e), Fla. Stat. (2005) (defining “compensable” as “a determination by a carrier or [JCC] that a condition suffered by an employee results from an injury arising out of and in the course of employment.”); § 440.09(1)(a)-(b), Fla. Stat. (2005) (explaining major contributing cause analysis requires comparison of relative causal relationships between preexisting, subsequent, and compensable injuries); see generally Jackson v. Merit Elec., 37 So.3d 381, 383 (Fla. 1st DCA 2010) (concluding carrier seeking to absolve itself from responsibility for medical treatment necessitated by a compensable injury must “demonstrate a break in the causation chain, such as the occurrence of a new accident or that the requested treatment was due to a condition unrelated to the injury ....”).

Here, because the E/C stipulated that Claimant’s L5-S1 disc herniation was a compensable injury and provided compen-sable treatment for the better part of five years, and further, because the medical records and opinions of Dr. Brown established that the L5-S1 disc herniation was caused in major part by Claimant’s com-pensable accident, the JCC found Claimant met his burden of persuasion to establish a causal relationship between his workplace accident and his L5-S1 disc herniation. The JCC rejected the E/C’s allegation and Dr. Brown’s testimony suggesting Claimant suffered a subsequent accident and injury that contributed to Claimant’s low back condition. The JCC further 'found there were only two causes of Claimant’s lower back injury, the workplace injury and a preexisting spondylosis, which Dr. Brown opined was responsible for 10% of Claimant’s symptoms.

The order on appeal awarded contested benefits to Claimant, and was therefore not wholly favorable to the E/C. Because the E/C neither appealed nor cross-appealed the findings of fact favorable to Claimant, these favorable findings cannot be challenged by the E/C in this appeal. A cross-appeal is an appellee’s exclusive method of obtaining relief from error in an order, and absent a cross-appeal, an appellee may not seek affirmative relief from any part of the order; the appellee may only defend the order. See Premier Indus. v. Mead, 595 So.2d 122, 124 (Fla. 1st DCA 1992) (“Because North-brook failed to invoke the appellate jurisdiction of this court by filing a notice of appeal, notice of cross appeal, or notice of joinder in the appeal by Premier and Sentry, it has remained an appellee and is not authorized to use its status as such to argue positions as an aggrieved party in derogation of the appealed order.”). Based on the foregoing, and in light of the legal errors raised by Claimant in this appeal, we conclude that the JCC misapplied the MCC standard in denying the medical treatment at issue.

Section 440.09(l)(a)-(b) sets forth the textual basis for coverage of injuries under chapter 440. This section provides that “the accidental compensable injury must be the major contributing cause of any resulting injuries” for which treatment or benefits are sought. § 440.09(1), Fla: Stat. (2005). “Major contributing cause” is expressly defined as “the cause which is more than 50 percent responsible for the injury as compared to all other causes combined for which treatment or benefits are sought.” Id. (emphasis added). Although this definition does not contain a list of “other causes” that may be considered in performing the MCC comparison, the two subsections that follow — both of which specifically explain how MCC analysis is to be performed — distinctly limit the “other causes” that may be considered to (1) preexisting injuries and conditions, or (2) subsequent injuries. See § 440.09(l)(a)-(b), Fla. Stat. (2005).

In short, under the text of section 440.09(1)(a)-(b), MCC analysis cannot be performed in a vacuum or, particular^ in the absence of competing causes, as this court has previously concluded. See Lanham v. Dep’t of Envtl. Prot., 868 So.2d 561, 563 (Fla. 1st DCA 2004) (“In that the record discloses there was only one cause of claimant’s injuries, rather than competing causes, claimant was not required to present additional evidence going to the issue of whether the work-related accident was the major contributing cause of the injuries.”); Bysczynski v. United Parcel Servs., Inc., 53 So.3d 328, 331 (Fla. 1st DCA 2010) (“In sum, because all the medical evidence establishes that the only contributing causes of Claimant’s need for the cervical spine fusion were occupational in nature, the JCC erred in applying the major contributing cause standard to deny the surgery. Accordingly, the order on appeal is reversed and this case is remanded for entry of an order authorizing the surgical spine fusion.”); see also Caputo v. ABC Fine Wine & Spirits, 93 So.3d 1097, 1098 (Fla. 1st DCA 2012) (stating if “ ‘there was only one cause of claimant’s injuries, rather than competing causes, claimant was not required to present additional evidence going to the issue of whether the work-related accident was the major contributing cause of the injuries.’ ” (quoting Lanham, 868 So.2d at 563)).

Here, to avoid responsibility for the surgical treatment of the L5-S1 herniation, the E/C attempted to demonstrate a break in the causation chain between the workplace accident and the compensable lower back injury, and sought to prove that the surgery was to treat a new and unrelated injury or medical condition. But, the JCC found Claimant did not have a subsequent accident or lower back injury. Because the E/C did not cross-appeal the JCC’s findings in this regard, including the JCC’s rejection of all medical opinions founded on the occurrence of a subsequent accident or injury, these findings cannot be reviewed by this court. Premier Industries, 595 So.2d at 122.

Thus, the JCC found there were “only” two causes of Claimant’s lower back condition for which the medical treatment at issue here was provided: the L5-S1 herniated disc and a preexisting spondylo-sis. Further, the JCC did not find that the preexisting spondylosis was the MCC of Claimant’s need for medical treatment; on the contrary, the JCC awarded Claimant ongoing medical care because there was insufficient evidence to support the E/C’s assertion that the workplace accident was no longer the MCC of Claimant’s need for medical treatment.

Given these findings, the JCC’s conclusions on the issue of the MCC of the need for surgery are inconsistent. Under the dictates of section 440.09(l)(b), Florida Statutes (2005), and this court’s relevant case law, the JCC should have weighed the relative contributing forces of the two established contributing causes of Claimant’s lower back injury that required medical treatment. Because the JCC failed to engage in such analysis, we reverse and remand for the JCC to perform MCC analysis consistent with this opinion — based on the evidence already introduced, and in light of the unchallenged factual findings favorable to Claimant contained in the appealed order.

Emergency Services and Care

We turn next to Claimant’s second point on appeal, which asserts' the JCC also applied an incorrect legal standard to determine that the medical care provided by Dr. Acebal did not constitute “emergency services and care.” Claimant’s argument on this point also has merit.

Under section 440.13(l)(f), Florida Statutes, “emergency services and care” is defined, by its reference to section 395.002, Florida Statutes (2005), as follows:

(10) “Emergency services and care” means medical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable law, by other appropriate personnel under the supervision of a physician, to determine if an emergency medical condition exists and, if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition ....

§ 395.002(10), Fla. Stat. (2005). Thus, “emergency services and care” begin when a physician undertakes a medical screening, examination, or evaluation to determine whether an emergency medical condition exists. Here, the JCC concluded that, because the surgery performed by Dr. Acebal was not an emergency, Dr. Acebal provided no emergency services and care. But, the JCC did not consider the variety of services that are covered under section 395.002(10), including “medical screening, examination, and evaluation by a physician ... to determine if an emergency medical condition exists.” Id.

Thus, under the requirements of section 395.002(10), the relevant questions regarding whether emergency services and care were provided by Dr. Acebal are: (1) whether the service provider is a licensed physician (or other appropriate personnel acting under the supervision of a physician); (2) whether an evaluation, screening, or examination was conducted by that physician (or other authorized personnel); and (3) whether such care was undertaken by the physician with the intent of determining “if an emergency medical condition exists.” Under normal circumstances, these simple questions can be answered by the finder of fact without resort to medical opinion testimony.

If each of these questions is answered in the affirmative, then under section 395.002, and thereby under section 440.13(1), “emergency services and care” of some sort have been provided. Here, the foregoing relevant questions went unanswered by the JCC; accordingly, we agree that the JCC employed an incorrect legal standard in determining whether Dr. Acebal provided emergency services and care of some sort to Claimant.

Because the JCC failed to use the correct legal standard to determine whether emergency services and care were rendered to Claimant by Dr. Acebal, and further, because the evidence is such that a reasonable finder of fact could conclude that the evaluations and diagnostics performed by Dr. Acebal qualified as “emergency services and care” as defined under the Workers’ Compensation Law, we reverse and remand for the JCC to determine whether Dr. Acebal provided any services and care that would qualify as “emergency services and care” as defined under the statutory provisions discussed herein.

We note, however, that simply because emergency care was provided does not make such care “compensable” under chapter 440. Neither does this fact alone render the providing physician eligible for payment under chapter 440, nor does the fact that a doctor who provides some com-pensable emergency care, such as examinations and screening, make all care provided by this doctor compensable. Rather, the compensability of emergency care under chapter 440, and the providing physician’s eligibility for payment for such care, is dependent on additional elements contained in the Workers’ Compensation Law.

These two additional elements are the following. First, as with all medical care awardable under chapter 440, the care must be medically necessary. § 440.13(2)(a), Fla. Stat. (2005) (an employer has an obligation to provide “such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require,” including emergen-ey care). Second, under section 440.13(3)(b), emergency care is “compensa-ble” if the “injury requiring emergency care arose as a result of’ the workplace accident. Thus, to be “compensable,” such care must be not only “emergency” care, but also “medically necessary,” and it must be provided for a compensable injury.

Here, Claimant’s herniated disc at the L5-S1 level is the compensable workplace injury based on the JCC’s uncontested findings. On remand, if the JCC determines that Dr. Acebal provided emergency services and care, including screening and testing, the JCC must then determine whether any of the emergency services and care were compensable under the standards announced above — without reliance on Dr. Acebal’s medical opinion testimony.

We now turn to whether the JCC also erred in determining that Dr. Acebal’s medical opinion testimony was inadmissible under section 440.13(5)(e), Florida Statutes (2005). For the reasons that follow, we hold that a proper interpretation of section 440.13(5)(e) permits admission of medical opinion testimony from a physician who is first proven, through other admissible testimony or other permissible means, to have provided emergency care and services compensable under chapter 440.

Section jM0.13(5)(e) — “Authorized Treating Provider”

Section 440.13(5)(e), Florida Statutes (2005), provides, in its entirety:

(e) No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.

This plain language limits the witnesses who can provide medical opinion testimony to an expert medical advisor “appointed by the [JCC],” an independent medical examiner, or an “authorized” treating physician.

Emergency Providers

Although all other physicians providing compensable care under chapter 440 must receive express authorization “from the carrier” to be eligible for payment for treatment provided to an injured worker, this rule does not apply to emergency care physicians. See § 440.13(3)(a), Fla. Stat. (2005). By legislative decree, “all licensed physicians and health care providers in this state shall be required to make their services available for emergency treatment of any employee eligible for workers’ compensation benefits,” with or without authorization from a carrier. § 440.13(3)(b), Fla. Stat. (2005). “To refuse to make such treatment available is cause for revocation of a license.” Id.

Under the language of section 440.13(3)(a), routine medical care must be authorized by the carrier, and only through such authorization may a physician become eligible for payment (except where the self-help provisions of section 440.13(2)(c) are at play). Cf. Lakeland Reg’l Med. Ctr. v. Murphy, 695 So.2d 895 (Fla. 1st DCA 1997) (holding claimant cannot “authorize” doctor under chapter 440), with Parodi v. Fla. Contracting Co., Inc., 16 So.3d 958, 962 (Fla. 1st DCA 2009) (rejecting argument that “authorization of a physician can emanate only from the unassailable discretion of an employer or carrier,” and holding JCC may “authorize” physician where E/C has wrongfully denied care). In emergency care, however, all licensed physicians are both permitted and required to provide such care, regardless of whether authorization has been furnished. See § 440.13(3)(a)-(b), Fla. Stat. (2005). Thus, based on a reasonable and harmonious reading of the statutory provisions, we conclude that where the admissible medical and lay testimony establishes that a physician has provided compensable emergency medical services, that physician’s medical opinion testimony is admissible as an “authorized treating provider” under section 440.13(5)(e).

In Miller Electric Co. v. Oursler, we held that a medical provider not authorized by the carrier cannot offer admissible medical opinions, until and unless it is first established that this provider furnished compensable care that was medically necessary. 113 So.3d 1004 (Fla. 1st DCA 2013). The facts in Oursler are distinguishable from this case, however, because there, the claimant failed to sufficiently establish that the medical care at issue was compensable or medically necessary, rendering the unauthorized physician’s testimony inadmissible. In this case, however, depending on the JCC’s findings of fact made on remand, the facts may establish that Claimant received compensable “emergency services and care.” '

Importantly, Oursler did not hold that an emergency provider can never be considered an authorized doctor,, whose opinion might become admissible. To the contrary,

[bjecause some medical care from unauthorized providers can later be determined to be covered by workers’ compensation by operation of law, such as that care given in emergency situations ... , such providers’ medical opinions can become admissible as a matter of law.

Id. at 1008. Based on the foregoing, if on remand the JCC determines, without relying on Dr. Acebal’s medical opinion testimony, that Dr. Acebal provided medically necessary and compensable emergency services and care of any sort to Claimant, the JCC must then find Dr. Acebal a treating provider “authorized” to provide such care under chapter 440. If such a finding is made, then, and only then, shall the JCC admit Dr. Aeebal’s medical opinion testimony into evidence under section 440.13(5)(e), to determine whether the surgery performed by Dr. Acebal qualifies as emergency services and care under chapter 440.

The Surgery

Having established that the JCC employed the incorrect legal standards to determine whether Dr. Acebal’s medical opinion was admissible, we now turn to the issue of whether the JCC also used an incorrect standard in determining that the surgery performed by Dr. Acebal did not qualify as compensable emergency services and care under chapter 440.

As discussed above, under section 395.002(10), Florida Statutes (2005), “emergency services and care” include screening, examinations, and evaluations performed by a physician “to determine if an emergency medical condition exists and, if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition .... ” An “emergency medical condition,” as defined in section 395.002(9)(a), Florida Statutes (2005), means:

(a) A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:
1. Serious jeopardy to patient health, including a pregnant woman or fetus.
2. Serious impairment to bodily functions.
3. Serious dysfunction of any bodily organ or part.

(Emphasis added.) Dr. Acebal observed Claimant in the hospital setting, and he testified that Claimant was immobile, in “unbearable pain,” and could not move or stand. Claimant’s symptoms included a massive herniated disc, associated weakness and numbness, “unbearable” pain, and inability to move — conditions which, according to Dr. Acebal’s testimony, impaired Claimant’s ability to walk, a bodily function. Further, Dr. Acebal testified that if this condition was not ameliorated, it could have caused serious jeopardy to Claimant’s health, such as cauda equina syndrome.

The JCC, however, found Claimant’s surgery was not emergent in nature based on Dr. Brown’s testimony that an emergent reason for surgery would be cau-da equina syndrome, and Dr. Salamon’s testimony that back pain is “never” an emergency. But this is not the correct legal test. Section 395.002(9)(a) does not limit an emergency to certain medical signs, such as cauda equina syndrome, and it does not exclude back pain. Indeed, this statutory provision specifically provides that an “emergency medical condition ... may include severe pain,” where such a condition, in the absence of immediate medical attention, “could reasonably be expected to result” in serious impairment or dysfunction of any bodily function or part. Id. As a matter of law, contrary to the testimony of both Dr. Brown and Dr. Sala-mon, section 395.002(9)(a) (and thus sections 395.002(10) and 440.13(1)(f)) permits pain to serve as the basis of an emergency medical condition, if in “the absence of immediate medical attention” the claimant could reasonably be expected to suffer “serious impairment to bodily functions” or “serious dysfunction of any bodily organ or part.” § 395.002(9)(a), Fla. Stat. (2005).

In this case, there is no dispute that the surgery performed by Dr. Acebal was medically necessary. Thus, because the JCC employed incorrect legal standards to determine whether the surgery qualified as emergency services and care, and thus compensable under chapter 440, and because the JCC used an improper standard to determine whether Dr. Acebal’s medical opinion was admissible in the proceedings below, we reverse the JCC’s denial of the compensability of the surgery and remand for reconsideration based on the proper legal standards announced herein.

Finally, we hold that the JCC erred in ruling that Dr. Acebal’s emergency surgery was not compensable, because the emergency provider failed to give the E/C timely notice of the emergency treatment, as required under section 440.13(3)(b), Fla. Stat. (2005) (“A health care provider who renders emergency care must notify the carrier by the close of the third business day after it has rendered such care.”). It is undisputed that neither Dr. Acebal nor any other party from KRMC ever notified the Employer or Carrier after Dr. Acebal’s treatment. Section 440.13(3)(b), however, does not speak to the compensability of the care. It does not address whether the medical treatment or care is sufficiently related to a compensable condition, nor does it alter any facts that might establish that such care was provided on an emergency basis.

Further, and dispositive here, section 440.13(3)(b) does not set forth any penalty to the claimant for the emergency health care provider’s failure to give the E/C timely notice of the emergency treatment. To the extent that this statutory notice requirement might affect the compensation that Dr. Acebal is entitled to receive, as opposed to his eligibility for payment based on the compensability of the treatment, the JCC has no jurisdiction over any billing disputes between Dr. Ace-bal and the E/C relative to the provision of compensable care. See J.B.D. Bros. v. Miranda, 25 So.3d 1271 (Fla. 1st DCA 2010) (explaining JCC lacks jurisdiction over billing dispute between carrier and medical provider).

Because the language of section 440.13(3)(b) does not indicate that the Legislature intended that an emergency health care provider’s failure to comply with the notice provisions contained therein renders a claimant responsible for the payment for emergency medical treatment, we decline to adopt such an interpretation here. On remand, should the JCC determine that the surgery provided by Dr. Acebal was medically necessary and was provided on an emergency basis for a compensable injury, the JCC shall not decide any potential reimbursement dispute between the E/C and Dr. Acebal, as the Department of Financial Services has exclusive jurisdiction over such disputes. See § 440.13(11)(c), Fla. Stat. (2012) (stating Department of Financial Services “has exclusive jurisdiction to decide any matters concerning reimbursement”).

Based on the foregoing, we reverse the JCC’s denial of Claimant’s claim for com-pensability of the emergency surgery performed by Dr. Acebal, and the resulting denial of requested temporary indemnity benefits related to this surgery. We remand the case for further proceedings and findings of fact consistent with this opinion, based on the evidence already offered by the parties.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

WOLF, J., concurs; MARSTILLER, J., dissents without opinion.

      . Notwithstanding the fact that Dr. Acebal did not obtain authorization from the carrier before providing medical services, there is no dispute that Claimant was permitted to introduce the doctor's factual testimony regarding Claimant's admission to the emergency room, including Claimant's appearance, complaints, diagnosis and treatment. See Office Depot. Inc. v. Sweikata, 737 So.2d 1189, 1191 (Fla. 1st DCA 1999). The issue of whether emergency services and care have been provided can, under appropriate circumstances, be established by non-expert testimony. See Univ. of Fla. Bd. of Trustees v. Stone ex rel. Stone, 92 So.3d 264 (Fla. 1st DCA 2012).

      . We are mindful of our opinion in Chudnof-James v. Racetrac Petroleum, Inc,, 827 So.2d 369 (Fla. 1st DCA 2002), where we concluded that the only evidence to support the causal relationship or the medical necessity of the emergency treatment was the opinion of the emergency room physician, which was inadmissible under section 440.13(5)(e); thus, we held the claimant failed to prove by admissible evidence or other permissible means that the emergency care was compensable.
      Here, based on admissible lay and expert testimony, and based on the absence of a legal controversy as to the compensability of Claimant's injuries, there is a sufficient basis for a reasonable finder of fact to conclude that Dr. Acebal provided compensable emergency services and care. Thus, Chudnof-James does not control the outcome here. Nevertheless, we reiterate that a doctor not authorized by the carrier cannot offer medical opinion testimony, until it is first proven by independently admissible testimony or other permissible means, such as stipulations or by operation of law, that the physician in question provided compensable medical services.

      . We observe that in section 440.13(3)(a), but not in section 440.13(5)(e), the Legislature qualified the term ''authorization” by adding the phrase "from the carrier.” If, however, the term "authorization” signals only that power emanating from a carrier’s express grant of authority, there would be no need for the Legislature to have qualified the term "authorized" in section 440.13(3)(a) by the phrase "from the carrier,” as such language would be surplusage, which would violate canons of statutory construction requiring that verba cum effectu sunt accipienda, "words are to be taken as having an effect.” See generally, Scalia and Gardner, Reading Law: The Interpretation of Legal Texts, p. 174 (1st Ed. 2012).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Glenn SPRADLEY, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-3396.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2013.
    Rehearing Denied Jan. 31, 2014.

      Glenn Spradley, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The petition for writ of mandamus is based upon the groundless allegation that the circuit court’s order denying extraordinary relief did not constitute a final, ap-pealable order dismissing the pending matter below. The petition for writ of mandamus is denied on the merits.

In light of petitioner’s extensive pro se activity before the court, we issued an order to show cause why sanctions should not be imposed against petitioner including, but not limited to, a prohibition on any further pro se filings. The response does not show good cause to prohibit sanctions. Because petitioner has abused the judicial process, petitioner is barred from future pro se filings in this court. The clerk of the court is directed not to accept any future filings from Glenn Spradley or by any party on his behalf unless the pleadings are filed by a member in good standing of The Florida Bar.

In any active case before the court in which Spradley is appearing pro se, he is directed to secure the appearance of counsel with 30 days, failing which any such case will be subject to dismissal.

WOLF, VAN NORTWICK, and ROWE, JJ., concur.


author: COHEN, J.

text:
    STATE of Florida, Appellant, v. Joseph Patrick GRUE, Appellee.
    No. 5D12-4812.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    Warren W. Lindsey of Law Office of Warren W. Lindsey, P.A., Winter Park, and David A. Henson of David A. Henson, P.A., Brevard, NC, for Appellee.
   ON MOTION FOR REHEARING

COHEN, J.

We grant Grue’s motion for rehearing in part, withdraw our previous opinion, and replace it with the following.

The State appeals an order granting Joseph Grue’s motion to suppress. The issue on appeal is whether there was sufficient evidence to establish probable cause — based upon a police K-9’s alert— set forth in the affidavit to support the issuance of a search warrant, or to paraphrase Justice Kagan, whether the sniff was up to snuff. We conclude the affidavit provided probable cause and reverse.

On January 4, 2012, Officer David Alvarado of the Orange County Sheriffs Office was working at the FedEx sort line with his assigned K-9, Dixie. For reasons that are unclear from the record, Officer Alvarado pulled a package addressed to Grue at the Buena Vista Palace Hotel from the line and placed it with other similar packages. Officer Alvarado had Dixie do a narcotics scent search of the packages, and Dixie alerted Officer Alvarado of the presence of narcotics in the package addressed to Grue.

Based upon Dixie’s alert, Officer Alvarado applied for a search warrant. The affidavit in support of the application for the warrant was a pre-printed form with a minimal amount of case-specific information. The affidavit noted Officer Alvarado’s credentials, training, and experience handling narcotics detection dogs, including Dixie. The affidavit also set forth information regarding Dixie’s training, including that she participated in a narcotics scent discrimination course. It averred that Dixie was “certified” and had located “thousands of pounds of narcotics” in the past. The affidavit related what occurred on January 4, 2012, leading up to and including Dixie’s alert on the package addressed to Grue.

Based on the information contained in the affidavit, a search warrant was issued. Officer Alvarado opened the package and found it contained 6.2 grams of oxycodone pills and approximately 19.1 grams of cocaine. When Grue came to the business center at the Buena Vista Palace Hotel to pick up his package, Officer Alvarado, acting undercover, handed the package to Grue. Grue was almost immediately detained and subsequently charged with one count of trafficking in four grams or more of oxycodone and one count of possession of cocaine with intent to sell or deliver.

Grue moved to suppress the contents of the package, arguing that Officer Alvarado searched the package pursuant to a defective warrant that was, on its face, wholly lacking in probable cause. Grue relied on Harris v. State, 71 So.3d 756 (Fla.2011) (hereinafter Harris I), in which the Florida Supreme Court set forth evidentiary requirements that the State must satisfy in order to establish probable cause based on a dog sniff. He argued that the affidavit supporting the warrant contained merely conclusory, generic statements regarding Dixie’s training and certification, and lacked any explanation thereof. Furthermore, it did not include field records or false alert percentages, as required by Harris I.

At the hearing on the motion to suppress, the trial court considered only the information contained within the four corners of the affidavit. The court was persuaded by Grue’s argument that Harris I applied and granted the motion to suppress, noting: “If the officer had written out things such as what Harris requires, then the Court would probably be — would be denying the motion to suppress.” The State filed a timely appeal.

This case comes to us in a vastly different legal landscape than existed at the time of the hearing on Grue’s motion to suppress. While this appeal was pending, the United States Supreme Court overruled Harris I. See Florida v. Harris, — U.S. -, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (hereinafter Harris II ). Grue argues that, even under Harris II, the affidavit was inadequate and affir-mance is appropriate. We disagree.

We review the trial court’s decision de novo. See State v. Felix, 942 So.2d 5, 8 (Fla. 5th DCA 2006) (citing Pagan v. State, 830 So.2d 792 (Fla.2002)) (stating that standard of review is de novo where trial court bases its probable cause determination solely on examination of the affidavit). The determination of whether probable cause exists to issue a search warrant is made by looking within the “four corners” of the affidavit. Felix, 942 So.2d at 9. Based on the facts set forth in the affidavit, the magistrate must make a “practical common sense decision” about whether there is a “fair probability” that evidence of a crime will be discovered in the place to be searched. State v. Irizarry, 948 So.2d 39, 43 (Fla. 5th DCA 2006) (citing Illinois v. Gates, 462 U.S. 213, 238-39; 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

Generally, an alert by a properly trained narcotics detection dog provides probable cause. State v. Siluk, 567 So.2d 26, 28 (Fla. 5th DCA 1990). The alert, however, must be sufficiently reliable. See Harris II, 133 S.Ct. at 1056-58. Whether the alert is reliable enough to establish probable cause is determined based on the totality of the circumstances. See id. at 1058 (“The question — similar to every inquiry into probable cause — is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.”).

In Harris II, the Supreme Court overruled the Florida Supreme Court’s requirement that the State present particular evidence in order to establish a dog’s reliability. The Court noted that this “evi-dentiary checklist” was the antithesis of the well-established totality-of-the-cireum-stances approach. Id. at 1056. It specifically took issue with the Florida Supreme Court’s requirement that the State present field performance records, noting why field performance records are actually less reliable than records of a dog’s performance in standard training and certification settings. Id. at 1056-57. For this reason, the Court held that “evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert.” Id. at 1057. Even without formal certification, the Court noted, a dog’s alert can provide probable cause if the dog “recently and successfully completed a training program that evaluated his proficiency in locating drugs.” Id. The Court then concluded that the State had established probable cause for a warrantless search.

Our decision in this case is also guided by pre-Harris case law. See, e.g., State v. Coleman, 911 So.2d 259, 261 (Fla. 5th DCA 2005) (holding that the State can make a prima facie showing of probable cause based on a narcotic detection dog’s alert if it demonstrates that the dog has been “properly trained and certified”); Vetter v. State, 395 So.2d 1199 (Fla. 3d DCA 1981) (holding that characterizing a dog as “trained” in the affidavit established probable cause to issue warrant); accord United States v. Sentovich, 677 F.2d 834 (11th Cir.1982) (agreeing with First and Tenth Circuits that training alone is sufficient to prove reliability of dog’s alert).

The form affidavit utilized by Officer Alvarado was not a model of clarity nor did it provide a wealth of information. It did not contain any'factual information bearing on the time, place, or qualifications of any of the facilities where Officer Alvarado or Dixie trained or the training programs in which they participated. It contained a rote statement that Dixie was trained and certified, but did not describe or explain the training process. Although Harris II allows for evidence of a dog’s certification or training to presumptively establish probable cause, we believe that it is preferable to provide additional information as to the identity of the organization that certified the K-9, the dates of that certification, and additional subsequent training.

However, the test for probable cause does not require the proof that the beyond a reasonable doubt standard or even the preponderance of the evidence standard requires. See Harris II, 133 S.Ct. at 1055. Rather, the question we must answer “is whether all the facts surrounding [the] dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” Id. at 1058. Here, the affidavit passes this test. It represented that Dixie and Officer Alvarado had gone through extensive training and that Dixie had discovered thousands of pounds of narcotics in the past. It then alleged that she had given a positive alert to the presence of narcotics in the package addressed to Grue. Based on these facts, a magistrate making a “practical common sense decision” could reasonably have found that there was a “fair probability” evidence of a crime would be discovered in the package. See Irizarry, 948 So.2d at 43.

Accordingly, we reverse the order granting the motion to suppress. We are cognizant, however, that the case law has changed dramatically during the pendency of this appeal. Counsel for Grue understandably argued the requirements of Harris I to the trial court, which reflected the law at that time. The trial judge applied his understanding of Harris I and granted the motion based upon the failure of the affidavit to make any effort to comply with the provisions of Harris I. On remand, counsel for Grue is not foreclosed from bringing other challenges.

REVERSED and REMANDED.

TORPY, C.J., and ORFINGER, J., concur.

      . It appears the process utilized at the FedEx facility in this case was fairly routine, which led to usage of a standardized form.

      . The Florida Supreme Court held that, to establish that a dog is sufficiently reliable such that its alert can provide probable cause, the State must present the following evidence: (1) "the dog's training and certification records”; (2) "an explanation of the meaning of the particular training and certification”; (3) "field performance records (including any unverified alerts)”; and (4) "evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog’s reliability." Harris I, 71 So.3d at 775.

      . The court also expressed concern that the affidavit was a pre-typed form that contained inaccuracies. The affidavit indicated that Dixie had completed 180 hours of training when, in fact, the State conceded that she had completed only 160 hours. Nonetheless, the court stated that it did not think the mistake made "a significant difference for purposes of argument.” The court also noted a discrepancy regarding the sex of the dog. The affidavit used the pronoun "he” in referring to Dixie, a female.

      . As a general rule, appellate courts must apply the law as it exists at the time of the appeal. Wendell v. United Servs. Auto. Co., 881 So.2d 1178, 1179 (Fla. 5th DCA 2004) (citing Fla. E. Coast Ry. Co. v. Rouse, 194 So.2d 260 (Fla.1966)).

      .In Hairis, the officer who conducted the search had completed a 160-hour narcotics detection course offered by the Dothan, Alabama Police Department, the dog (Aldo) had completed a similar 120-hour course offered by the Apopka, Florida Police Department, and Aldo received a one-year certification from Drug Beat, a private company that specializes in testing and certifying K-9s. Id. at 1054. Furthermore, the officer and Aldo went through a forty-hour refresher course in Dothan. Id. They also participated in four hours of training exercises each week to maintain their skills. Id. In these settings, the officer testified, Aldo always performed "at the highest level.” Id. at 1058. We recognize that the evidence in support of probable cause was stronger in Hams than in the instant case. Nevertheless, under the totality of the circumstances, Officer Alvarado’s affidavit was sufficient.

      . In Hairis I, the Florida Supreme Court disapproved of Coleman. See Hairis I, 71 So.3d at 775. However, in light of Hairis II's overruling of Hairis I, Coleman is still persuasive.

      . Additionally, it does not appear that Officer Alvarado proofread the affidavit. However, neither the discrepancy as to Dixie's sex nor the misstatement regarding the number of hours she trained are critical to our analysis.

      . Hairis II suggests the certification be from a bona fide organization.

      . We need not reach the issue of whether Harris I was applicable to searches pursuant to a warrant.


text:
    Peter ANTONACCI, Former Husband, Appellant, v. Juliana ANTONACCI, Former Wife, Appellee.
    No. 1D12-4551.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2013.
    Rehearing Denied Jan. 31, 2014.
    Lyman T. Fletcher and Michael R. Phillips of Fletcher & Phillips, Jacksonville, for Appellant.
    Carole A. Vogel of Vogel & Salvatore, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Appellant appeals the non-final order awarding temporary time-sharing to Ap-pellee during Appellant’s overseas deployment pursuant to military orders. We dismiss the appeal as moot. While we agree the issue is capable of repetition, the merits of the argument need not be addressed because we conclude that Appellant has failed to demonstrate that the issue raised, if repeated, is likely to evade appellate review. See L.W.T. v. A.W., 770 So.2d 241 (Fla. 1st DCA 2000) (dismissing appeal as moot where appellant failed to specifically describe the questions of great public importance or how the particular facts of the case were likely to recur yet evade appellate review). Accordingly, we DISMISS the appeal as moot.

WOLF, ROBERTS, and MAKAR, JJ„ concur.


text:
    Anthony VIRGINIA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5567.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2013.
    Rehearing Denied Jan. 30, 2014.

      Anthony Virginia, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Richard D. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5616.
    District Court of Appeal of Florida, First District.
    Dec. 13, 2013.
    Rehearing Denied Jan. 28, 2014.
    Richard D. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

LEWIS, C.J., BENTON and SWANSON, JJ., concur.


author: MARSTILLER, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Diane WEBB, as personal representative of the Estate of James Cayce Horner, Appellee.
    No. 1D12-5063.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2013.
    Rehearing Denied Jan. 29, 2014.

      Charles M. Trippe of Moseley Prichard Parrish Knight & Jones, Jacksonville, for Appellant.
    Steven L. Brannock and Celene H. Humphries of Brannock & Humphries, Tampa, James W. Gustafson of Searcy Denney Scarola Barnhart & Shipley, P.A., Tallahassee, and David J. Sales of David J. Sales, P A., Jupiter, for Appellee.
   MARSTILLER, J.

This is the second appeal arising from a jury verdict and damages award in the wrongful death action brought by Appel-lee, Diane Webb (“Webb”), against Appellant, R.J. Reynolds Tobacco Company (“RJR”). Webb sued RJR for the death of her father, James Horner, from lung cancer, and a jury awarded her $7.2 million in compensatory damages and $72 million in punitive damages. In R.J. Reynolds Tobacco Company v. Webb, 93 So.3d 831 (Fla. 1st DCA 2012), we vacated the damages award because “[t]he amount of the compensatory damages suggest[ed] an award that [was] the product of passion ... rather than evidence of [Mr. Horner’s] illness, subsequent death, and the noneconomic consequences of the death itself.” Id. at 339. We remanded to the trial court with directions to either grant RJR’s motion for remittitur, or hold a new trial on damages. Id. at 340.

Back in the lower court, Webb filed a motion to set the remitted award to $4 million in compensatory damages and $25 million in punitive damages. RJR responded with a renewed motion for remit-titur, seeking $250,000 or less in compensatory damages and $250,000 or less in punitive damages. The court entered an order styled, “Order of Remittitur or, Alternatively, for New Trial,” remitting damages to the amounts Webb requested, reducing the $4 million compensatory damages figure to $3.6 million based on the jury’s assigning Mr. Horner ten percent comparative fault. Importantly, the remittitur order stated, “Defendant, R.J. Reynolds Tobacco Company, is not entitled to a new trial on compensatory and punitive damages unless it is at the election of the Plaintiff” and gave Webb ten days to consent or object to the remittitur. (Emphasis added.) Webb consented, RJR objected, and the trial court entered an amended final judgment for a total $28.6 million in damages.

RJR appeals the amended judgment, arguing that the trial court erred as a matter of law by failing to hold a new trial on damages after RJR objected to the remitted damage amounts. We agree, and reverse.

Section 768.74, Florida Statutes, permits the trial court, upon a proper motion, to review damages awards “to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.” § 768.74(1), Fla. Stat. (2007). The statute further provides that “[i]f the party ad versely affected by such remittitur or ad-ditur does not agree, the court shall order a new trial in the cause on the issue of damages only.” § 768.74(4), Fla. Stat. (2007) (emphasis added). From the emphasized statutory language, it would appear the question to be answered in this case is, who was the party adversely affected by the remittitur?

For guidance, we look to the Florida Supreme Court’s opinion in Waste Management, Inc. v. Mora, 940 So.2d 1105 (Fla.2006), in which the court considered identical language in section 768.043, Florida Statutes, providing for remittitur or additur in damages actions arising out of the operation of vehicles. Pertinent to the scenario here, the supreme court stated:

Nor do we agree that only a party who receives “less in damages” can be affected by a remittitur, or only the party who has to pay more in damages can be affected by an additur. To the contrary, a defendant who has a jury award in an excessive amount of damages against the defendant can be a party adversely affected by a trial judge’s remittitur that is too little to cure the excessiveness. Similarly, a plaintiff who has a jury award for inadequate damages on the plaintiffs behalf is a part adversely affected by a trial judge’s additur that is too little to cure the inadequacy. In each case ... the party complaining about a continued excessiveness or inadequacy has the right to choose a new trial rather than the remittur or addi-tur.

Mora, 940 So.2d at 1108-9 (emphasis added). Notably, the supreme court also stated: “We recognize that our decision means that only when the parties agree with the trial court’s amount of remittitur or addi-tur will the remittitur or additur be enforced in lieu of a new trial.” Id. at 1109.

Relying on Mora, we conclude RJR was the “party adversely affected” under section 768.74(4) because it objected to the trial court’s remittitur. RJR therefore was entitled to a new trial on damages, and the trial court erred in conferring only on Webb the right to choose between accepting the remittitur and proceeding with a new trial. Accordingly, we reverse the amended final judgment, and remand this cause to the trial court to hold a new trial on damages.

REVERSED and REMANDED.

LEWIS, C.J., and OSTERBAUS, J., concur.

      . Webb sued as a member of the class described in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).

      . Compare § 768.043(1), Fla. Stat., at issue in Mora ("If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages."), and § 768.74(4), Fla. Stat., at issue in the instant case ("If the party adversely affected by such remittitur or addi-tur does not agree, the court shall order a new trial in the cause on the issue of damages only.").


author: BERGER, J.

text:
    Tiffany DAVIS and Owen Glenn Davis, etc., Appellant, v. James D. ROBERTS, Berin D. MacFarlane, et al., Appellee.
    No. 5D12-2113.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2013.

      Celene H. Humphries and Maegen P. Luka, of Brannock & Humphries, Tampa, Gerald D. Schackow and Brian G. Schack-ow, of Schackow, Mercadante & Edwards, P.A., Gainesville, and Floyd Faglie, of Staunton & Faglie, PL, Monticello, for Appellant.
    Adam J. Stallard, Tallahassee, for Ap-pellee, Agency for Health Care Administration.
    No Appearance for other Appellees.
    Steven E. Quinnell, of Quinnell Elder Law Firm, Pensacola, Amicus Curiae for The Academy of Florida Elder Law Attorneys.
   BERGER, J.

The appellants, Tiffany Davis and Owen Glenn Davis, as parents and natural guardians of Hunter Davis, a minor, appeal the trial court’s order, which determined, pursuant to the formula outlined in section 409.910, Florida Statutes (2012), that the Agency for Healthcare Administration (“AHCA”), is entitled to recover the full amount of AHCA’s Medicaid lien out of the proceeds Hunter received from a personal injury settlement. Appellants argue that section 409.910 is unenforceable to the extent it allows AHCA to recover more than what Hunter’s settlement allocated for past medical expenses. We agree and hold the trial court erred when it determined as a matter of law that it was without discretion to limit repayment of the lien and was, instead, required to apply the formula set forth in section 409.910(11)(f).

States participating in Medicaid are required by the federal government to seek reimbursement for medical expenses incurred on behalf of beneficiaries who later recover from third-party tortfeasors. See Arkansas Dep’t of Health & Human Servs. v. Ahlborn, 547 U.S. 268, 276, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006). To comply with federal directives the Florida legislature enacted section 409.910, Florida Statutes, which authorizes the State to recover from a personal injury settlement money that the State paid for the plaintiffs medical care prior to recovery. See Smith v. Agency for Health Care Admin., 24 So.3d 590, 590 (Fla. 5th DCA 2009). The specific amount the State may recover from a settlement is determined by utilizing the formula provided in section 409.910(11)(f), which caps recovery at half of the total amount of the settlement, after deducting attorney’s fees and costs. § 409.910(11)(f). In the end, however, the State’s Medicaid lien recovery will be limited by federal anti-lien provisions to “that portion of the settlement representing payments for medical care” as those provisions have been held to “preclude[] attachment or encumbrance of the remainder of the settlement.” Ahlborn, 547 U.S. at 284, 126 S.Ct. 1752.

In the present case, nine-year-old Hunter was rendered a parapalegic and lost two siblings when the mini-van her mother was driving collided head-on into a pick-up truck. Hunter was treated at Shands Hospital for her injuries. AHCA provided $282,928.87 in benefits to Hunter and claimed a lien for that amount. The Florida Department of Health’s Spinal Cord Injury Program (DOH) also provided benefits to Hunter and asserted a lien for $6,340. ' Appellants sued the driver and owners of the pick-up truck for Hunter’s economic and non-economic damages. Because all of Hunter’s medical care related to the accident was paid by Medicaid and DOH, the sum of both their liens ($239,-268.87) constituted Hunter’s entire claim for past medical expenses.

Appellants and the third party tortfea-sor entered into settlement negotiations, ultimately agreeing that $1,000,000 would go to Hunter in satisfaction of her individual claims for damages. They agreed, based on insurance caps and comparative negligence, that the $1,000,000 settlement represented 10% of the total value of all of Hunter’s damages, including her past medical expenses. Consequently, out of the $1,000,000 Hunter was to receive, the settlement agreement allocated $23,926.88 toward Hunter’s past medical expenses (10% of the total past medical expenses of $239,268.87), and allocated the remaining $976,073.12 to compensate Hunter for all of her substantial remaining damages.

Appellants petitioned the trial court to approve the settlement and reduce AHCA’s lien accordingly. Appellants argued that since Hunter was only receiving 10% of the value of all of her damages, her liens for past medical expenses should be correspondingly reduced. Although AHCA ultimately agreed to the settlement amount, it objected to the allocation within that settlement to past medical expenses and asserted that section 409.910 required its lien be paid in full.

The trial court conducted a lengthy evidentiary hearing during which Appellants’ counsel put on evidence to establish that the $1,000,000 settlement was in Hunter’s best interest and that the allocation to compensate Hunter’s past medical expenses was fair and reasonable. AHCA did not put on any evidence regarding the fairness or reasonableness of the settlement amount or the allocation within the settlement for Hunter’s past medical expenses. AHCA also did not challenge the value placed on the damages by Hunter’s expert and trial counsel. Instead, AHCA argued that the settlement and allocation were invalid because AHCA did not consent. Thus, section 409.910 controlled and required repayment of AHCA’s full lien amount. AHCA maintained that no legal authority authorized Florida courts to allow Medicaid recipients to prove that some smaller portion of their settlement was comprised of medical expenses. The trial court agreed and awarded AHCA its full lien amount, under the assumption that the language of section 409.910(11)(f) was mandatory and precluded it from considering evidence to support limiting payment of the lien. This was error.

This court was presented with a similar set of facts in Smith, in which the guardian for the plaintiff settled a personal injury claim for $2,225,000 after Medicaid paid $122,783.87 in medical expenses. 24 So.3d 590. Utilizing the formula in section 409.910(11)(f), the trial court awarded AHCA the full amount of its lien. On appeal, the guardian argued that since the settlement represented one-third of the plaintiffs total damages, Ahlbom required the trial court to reduce the Medicaid lien to one-third of the amount Medicaid paid. We rejected the argument that Ahlbom adopted a formula for determining what portion of a settlement was attributable to medical expenses, noting that the formula used by the parties in Ahlbom was problematic. Id. at 591. We reasoned, “without knowing how much of a plaintiffs total damage claim is comprised of medical expenses, there is no way to calculate the medical expense portion of a settlement by simply comparing the damage claim to the ultimate settlement amount.” Id. We agreed, however, that “under Ahlbom a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid lien amount by demonstrating, with evidence, that -the lien amount exceeds the amount recovered for medical expenses.” Id. at 592.

Although AHCA correctly argued that we ultimately held' section 409.910(11)(f) had to be used to determine the amount paid to AHCA in Smith, we did not do so because we determined the language in the statute was mandatory; rather, we determined the formula had to be used because there was no allocation in the settlement agreement and the plaintiff proffered no evidence at the hearing from which the trial court could determine how much of the damages represented medical expenses. In other words, we determined that absent proof of an allocation in a settlement agreement, section 409.910(11)(f) must be used to calculate the amount owed to AHCA.

The fourth district also authorized use of an evidentiary hearing to determine the amount of a settlement attributable to medical expenses. See Roberts v. Albertson’s Inc., 119 So.3d 457 (Fla. 4th DCA 2012), reh’g and reh’g en banc denied, modified on reh’g, No. 4D10-2313 (Fla. 4th DCA June 26, 2013). In Roberts, the plaintiff filed a motion to determine the equitable Medicaid lien amount, asking the court to determine the amount of the settlement comprised of medical expenses and to limit recoupment of the Medicaid lien to that amount. Id. at 458. As it did in the case before us, AHCA opposed a hearing arguing that the formula in section 409.910(11)(f) was mandatory and provided the only mechanism to determine what portion of a personal injury settlement was subject to a Medicaid lien. Id. at 462. The trial court agreed and. ordered, based on section 409.910(11)(f), that AHCA was entitled to a Medicaid lien for the full amount of Medicaid benefits provided to the recipient. Id.

On appeal, the fourth district reversed, recognizing that the statutory formula could run afoul of federal anti-lien and anti-recovery statutes if the majority of an award was not allocable to medical expenses. Id. at 465-66. The court concluded that section 409.910 was a default allocation, which created a presumptively valid allocation of settlement proceeds subject to a Medicaid lien when AHCA does not participate in the settlement agreement. Id. at 465. The court also concluded, however, that a Medicaid recipient had the right to rebut the presumptively valid allocation by seeking a judicial determination of the portion of a personal injury settlement subject to a Medicaid lien. Specifically, the court stated, “[W]e agree with the Fifth District in Smith ... that a plaintiff should be afforded an opportunity to- seek the reduction of a Medicaid lien amount established by the statutory default allocation by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses.” Id. at 466.

Smith and Roberts are both in line with the United States Supreme Court’s recent decision in Wos v. E.M.A. ex rel. Johnson, -U.S.-, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013). In Wos, the Supreme Court determined that North Carolina’s third-party liability statutes, as applied, failed to comply with federal Medicaid law limiting a state’s recovery to settlement proceeds that are shown to be properly allocable to medical expenses. See E.M.A. v. Cansler, 674 F.3d 290, 312 (4th Cir.2012), cert. granted, — U.S.-, 133 S.Ct. 99, — L.Ed.2d - (2012) and aff’d sub nom., Wos v. E.M.A. ex rel. Johnson, — U.S. -, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013). The defect in the North Carolina statute was that it set forth no process for determining what portion of a beneficiary’s tort recovery was attributable to medical expenses. Instead, it picked an arbitrary number, one-third, and by statutory command labeled that portion of a beneficiary’s tort recovery as representing payment for medical care when the State’s Medicaid expenditures exceeded one-third of the beneficiary’s tort recovery. The Supreme Court determined that such an “irrebutta-ble, one-size-fits-all statutory presumption [was] incompatible with the Medicaid Act’s clear mandate that a'State may not demand any portion of a beneficiary’s tort recovery except the share that is attributable to medical expenses[,]” and clarified that no estimate would be necessary or appropriate when there is a judicial finding or approval of an allocation between medical and nonmedical damages in the form of either a jury verdict, court decree, or stipulation binding on all parties. Id. at 1399.

AHCA argues that Wos is readily distinguishable from the instant case and that this court is not bound in any way by that decision. AHCA insists that Wos does not provide recipients a right to prove, with evidence, that any amount required for reimbursement by a state exceeds the medical expense portion of a settlement. Instead, AHCA argues that the holding of Wos was that the trial court erred in denying the recipient in that case an attempt to rebut North Carolina’s statutory formula’s determination of the medical expense portion of that settlement. We disagree.

Ahlbom and Wos make clear that section 409.910(11)(f) is preempted by the federal Medicaid statute’s anti-lien provision to the extent it creates an irre-buttable presumption and permits recovery beyond that portion of the Medicaid recipient’s third-party recovery representing compensation for past medical expenses. Accordingly, we agree with the fourth district in Roberts that section 409.910(11)(f) is a “default allocation.” 119 So.3d at 465. As such, we reiterate our prior directive and hold that a Medicaid recipient “should be afforded the opportunity to seek the reduction of a Medicaid lien amount by demonstrating, with evidence, that the lien amount [established by section 409.910(11X0 ] exceeds the amount recovered for medical expenses.” Smith, 24 So.3d at 592; see also Agency for Health Care Admin. v. Riley, 119 So.3d 514, 516 (Fla. 2d DCA 2013) (expressly adopting the fourth district’s holding in Roberts that a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid lien amount established by the statutory default allocation by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses).

Regardless, AHCA insists that the recipient in this case was provided an eviden-tiary hearing and was unable to persuade the trial court to rule in her favor. The trial court’s detailed order belies such interpretation. Despite its express finding that “[t]he facts and circumstances of the injury and the limited settlement justify relief from the full payment of the lien,” the trial court believed it was “hamstrung by section 409.910” and without discretion to reduce the lien. This was error because our decision in Smith gave the trial court the authority to reduce the lien if there was sufficient evidence introduced to support the reduction. However, to the extent we were unclear, Wos,Roberts, and Riley expressly authorize a plaintiff to seek, by way of an evidentiary hearing, the reduction of the Medicaid lien amount established by the statutory allocation. Accordingly, we reverse the order on appeal and remand for a supplemental hearing to allow the trial court and the parties to be guided by these decisions. The trial court is free to rely on evidence in the record from the prior hearing and, if necessary, to consider additional evidence.

REVERSED and REMANDED.

ORFINGER and WALLIS, JJ., concur.

      .Section 409.910(11)(f) provides:
      (f) Notwithstanding any provision in this section to the contrary, in the event of an action in tort against a third party in which the recipient or his or her legal representative is a party which results in a judgment, award, or settlement from a third party, the amount recovered shall be distributed as follows:
      1. After attorney's fees and taxable costs as defined by the Florida Rules of Civil Procedure, one-half of the remaining recovery shall be paid to the agency up to the total amount of medical assistance provided by Medicaid.
      2. The remaining amount of the recovery shall be paid to the recipient.
      3. For purposes of calculating the agency’s recovery of medical assistance benefits paid, the fee for services of an attorney retained by the recipient or his or her legal representative shall be calculated at 25 percent of the judgment, award, or settlement.
      4.Notwithstanding any provision of this section to the contrary, the agency shall be entitled to all medical coverage benefits up to the total amount of medical assistance provided by Medicaid. For purposes of this paragraph, "medical coverage” means any benefits under health insurance, a health maintenance organization, a preferred provider arrangement, or a prepaid health clinic, and the portion of benefits designated for medical payments under coverage for workers’ compensation, personal injury protection, and casualty.

      . See 42 U.S.C. § 1396p(a)(1) (2010).

      . Medicaid could have recovered up to $707,778.00 in medical expenses using the formula in section 409.910. However, because the State’s Medicaid lien totaled far less than the statutory cap, section 409.910 allowed the State to recover from the settlement the full amount it paid on the plaintiff's behalf. Smith, 24 So.3d at 591.

      . Indeed, section 409.910(13) expressly grants trial courts the discretion to bind AHCA to a settlement in the absence of AHCA’s consent. The statute provides:
      (13) No action of tlie recipient shall prejudice the rights of the agency under this section. No settlement, agreement, consent decree, trust agreement, annuity contract, pledge, security arrangement, or any other device, hereafter collectively referred to in this subsection as a “settlement agreement,” entered into or consented to by the recipient or his or her legal representative shall impair the agency's rights. However, in a structured settlement, no settlement agreement by the parties shall be effective or binding against the agency for benefits accrued without the express written consent of the agency or an appropriate order of a court having personal jurisdiction over the agency.

      § 409.910(13), Fla. Stat. (emphasis added).

        .Roberts was decided two weeks after the initial brief was filed in this case. Nonetheless, AHCA chose not to address the opinion in either its reply brief or its supplemental memorandum analyzing Wos v. E.M.A. ex rel. Johnson, -U.S. -, 133 S.Ct. 1391, 185 L.Ed.2d 471 (2013).

      . Wos was decided after the trial court issued its ruling and while this casé was pending on appeal.

      . The fourth circuit, in E.M.A, listed several states that had imposed statutory caps on Medicaid third-party recovery, but had amended their third-party liability statutes to comply with the holding in Ahlborn. Wos, 674 F.3d at 309. It highlighted, however, that Florida, Georgia, Hawaii, Iowa and North .Carolina still impose a statutory cap or allowed full recovery for Medicaid reimbursements post-Ahlbom. Id. at 310.

      . The Florida Legislature has since amended section 409.910 to allow the Medicaid recipient an opportunity to challenge the amount of the lien in an administrative hearing. Specifically, section 409.910(17) provides an administrative mechanism whereby a recipient may contest the amount designated as recovered medical expense damages payable to AHCA. In order to successfully challenge the amount payable to the agency, the recipient must prove, by clear and convincing evidence, that a lesser portion of the total recovery should be allocated as reimbursement for past and future medical expenses than the amount calculated by the agency pursuant to the formula set forth in paragraph (11)(f) or that Medicaid provided a lesser amount of medical assistance than that asserted by the agency. The revision also provides AHCA the means to prevent a fraudulent allocation of medical expenses that serves to reduce the amount AHCA can recover. § 409.910(17)(b), Fla. Stat.

      . We decline to comment on whether the evidence introduced at the hearing was sufficient to warrant the trial court’s conclusion.


text:
    Kory Brett DONALDSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3408.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.
    Rehearing Denied Jan. 30, 2014.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, through counsel, has attempted to challenge the constitutionality of Florida’s drug statute; specifically, section 893.13, Florida Statutes. His counsel maintains the statute is unconstitutional because it does not contain a mens rea requirement. Counsel acknowledges our supreme court has rejected this exact argument, but she maintains the appeal is to preserve the claim “for federal review purposes.” See Shelton v. Sec’y, Dep’t of Corr., 802 F.Supp.2d 1289 (M.D.Fla.2011); State v. Adkins, 96 So.3d 412 (Fla.2012).

As an initial matter, though, this claim was not raised at the trial level. Below, Appellant moved to suppress evidence recovered after police entered into his home. After the trial court denied his motion, Appellant accepted a plea; specifically reserving the right to appeal one issue: the denial of the motion to suppress. Appellant’s notice of appeal lists only the motion to suppress, and his statement of judicial acts to be reviewed lists solely the motion to suppress as well. Nowhere does the record reflect Appellant advanced his constitutional argument to the trial court. He has, therefore, not preserved the issue for appeal. Harrell v. State, 894 So.2d 935, 940 (Fla.2005).

Moreover, however, both Appellant’s counsel and the State fail to recognize that the Eleventh Circuit Court of Appeals reversed the trial court’s Shelton decision in August 2012. Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012). And, each also fails to recognize the United States Supreme Court then denied certio-rari in April 2013. Shelton v. Crews, — U.S.-, 133 S.Ct. 1856, 185 L.Ed.2d 822 (2013). Thus, there is nothing to preserve “for federal review purposes.” See Shelton v. Sec’y, Dep’t of Corr., 802 F.Supp.2d 1289 (M.D.Fla.2011), rev’d, 691 F.3d 1348 (11th Cir.2012), cert. denied sub nom., Shelton v. Crews, — U.S.-, 133 S.Ct. 1856, 185 L.Ed.2d 822 (2013).

Accordingly, Appellant failed to preserve the issue he argues before this Court. And, to the extent we were to entertain the argument, it is clearly without merit. We AFFIRM Appellant’s judgment and sentence.

WOLF, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Robert YOUNG, Appellant, v. AMERICAN AIRLINES and Sedgwick, Appellees.
    No. 1D13-1273.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2013.
    Rehearing Denied Jan. 30, 2014.
    Toni L. Villaverde of Toni L. Villaverde, PLLC, Coral Gables, for Appellant.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Ara R. Gechijian of Pallo, Marks, Hernandez, Gechijian & DeMay, Palm Beach Gardens, for Appellees.
   PER CURIAM.

This is the second time this workers’ compensation case has come before this court. In Young v. American Airlines & Sedgwick, 100 So.3d 1168, 1170 (Fla. 1st DCA 2012), we reversed an order of the Judge of Compensation Claims (JCC), which denied Claimant’s petition for permanent total disability (PTD) benefits, based on our conclusion that the JCC erred in admitting and relying upon an unauthenticated report from the Employer/Carrier’s independent medical examiner. Id. at 1169. We then remanded with instructions to the JCC to enter a final order awarding PTD benefits based on the uncontroverted opinions of Dr. Kleinhaus unless the JCC found the opinions unpersuasive. On remand, the JCC rejected Dr. Kleinhaus’s opinions because he “was not persuaded” by same. In doing so, however, the JCC provided no additional factual or legal reasons for the rejection of Dr. Kleinhaus’s uncontested expert opinions regarding Claimant’s status as having reached maximum medical improvement and his permanent work restrictions.

In this appeal, Claimant argues the JCC erred by rejecting Dr. Kleinhaus’s uncon-troverted medical opinions because no legally valid basis for such rejection was provided by the JCC; we agree. We conclude that the JCC erred by failing to provide a valid reason for rejecting the unrefuted medical opinions based on findings such as flawed medical history, inherent illogic or incredibility, or any other reasonable basis for finding Dr. Klein-haus’s opinions unreliable or unworthy of belief. Wald v. Grainger, 64 So.3d 1201 (Fla.2011); see also Feacher v. Total Emp. Leasing/Guarantee Ins. Co., 61 So.3d 1236, 1237 (Fla. 1st DCA 2011) citing Vadala v. Polk Cnty. Sch. Bd., 822 So.2d 582, 584 (Fla. 1st DCA 2002) (holding that JCC may reject unrefuted medical testimony but must give legally valid reason). Accordingly, we reverse the order below in its entirety and remand with instructions for entry of a final order awarding PTD benefits along with the applicable penalties, interest, attorney’s fees, and costs.

WOLF, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Christopher ISIDORE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1487.
    District Court of Appeal of Florida, Third District.
    Jan. 2, 2014.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before WELLS, EMAS and FERNANDEZ, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

Following Appellant’s motion to supplement the record on appeal, which we grant, the Court on its own motion withdraws the opinion previously issued in this cause, and issues the following opinion in its stead:

Affirmed.


text:
    Alvin Orlando CLAVELLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1928.
    District Court of Appeal of Florida, First District.
    Jan. 13, 2014.
    Pamela Jo Bondo, Attorney General, and Trisha Meggs Pate and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENSON, SWANSON, and OSTERHAUS, JJ., concur.


author: PER CURIAM. GRIFFIN, J.,

text:
    BREVARD ORTHOPAEDIC, SPINE & PAIN CLINICS, INC. and Richard Hynes M.D., Petitioners, v. HEALTH FIRST MEDICAL MANAGEMENT, INC., Respondent.
    No. 5D13-1165.
    District Court of Appeal of Florida, Fifth District.
    Jan. 17, 2014.
    Alan P. Whitehead and Erika McBryde, of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Petitioners.
    David C. Borucke, of Holland and Knight, Tallahassee, and Clifton A. McClelland, Jr., of McClelland Jones, L.L.C., of Melbourne, for Respondent.
   PER CURIAM.

Petitioners seek certiorari review of two orders rendered by the trial court in an ongoing lawsuit between the parties regarding two billing services agreements. One order under review denies Petitioners’ motion to disqualify the law firm representing Respondent in the underlying action, and the other order regards a discovery matter of alleged privileged materials. We deny the Petition for Writ of Certiora-ri without further discussion.

The billing services agreements contain identical prevailing party attorneys’ fee provisions, which state, “If legal action is commenced by any party to enforce or defend its rights under this Agreement, the prevailing party in such action shall be entitled to recover its costs and reasonable attorney fees in addition to any other relief granted.” Therefore, each party has filed motions for appellate attorneys’ fees. Because Respondent is the prevailing party in the proceedings in this court, we grant Respondent’s motion for fees provided Respondent is found by the trial court to be the prevailing party under the pertinent provision of the agreements at the conclusion of the underlying lawsuit. If so, the trial court will determine the reasonable amount of the fees. The question arises whether we should also grant Petitioners’ motion contingent upon the trial court ruling that Petitioners are the ultimate prevailing parties under the agreements. We believe that we should not and therefore deny the motion for fees to Petitioners. See E. Coast Metal Decks, Inc. v. Boran Craig Barber Engel Constr. Co., Inc., 114 So.3d 311, 314 (Fla. 2d DCA 2013) (“[W]e continue to adhere to the traditional approach of conditionally awarding prevailing party appellate attorneys’ fees only to the party who prevails on appeal.”).

PETITION DENIED.

SAWAYA and LAWSON, JJ„ concur.

GRIFFIN, J., dissents, with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent for four reasons. First, in my view, the analysis of this issue, set forth thirteen years ago in Aksomitas v. Maharaj, 771 So.2d 541 (Fla. 4th DCA 2000), is the correct approach; and, as far as I am aware, until now, we have generally applied Aksomitas in this Court to provisionally authorize fees for an appeal to the ultimately prevailing party, even though they may not have prevailed in the appeal itself.

Second, in deciding Brass & Singer v. United Automobile Insurance Co., 944 So.2d 252 (Fla.2006), which recognized that insureds can only recover fees for an appeal if they prevail on appeal, the Florida Supreme Court expressly relied on the language of section 627.428, Florida Statutes. If all litigants who do not prevail on appeal are not entitled to recover any appellate fees, even if they ultimately prevail on the merits of the case, the statutory distinction would have been irrelevant. The Florida Supreme Court did not question the basic premise of Aksomitas.

Third, I am not persuaded by the case of East Coast Metal Decks, Inc. v. Boran Craig Barber Engel Construction Co., 114 So.3d 311 (Fla. 2d DCA 2013), on which the majority relies. The case offers no analysis or rationale, nor does it identify any flaw in the Fourth District Court of Appeal’s reasoning in Aksomitas. Even Judge Altenbernd, in his concurring opinion, acknowledges that the Aksomitas decision is logical. He merely suggests that there may be a policy reason to deny these fees in order to discourage interlocutory appeals because they can be disruptive to the litigation. This does not make a lot of sense to me. Interlocutory appeals are expressly authorized by detailed and well thought out rules designed to allow immediate review of those few issues that arise in litigation where delay in resolving them, one way or the other, can lead to waste, unreasonable delay and undue expense to the parties. The venue issue in East Coast Metal Decks is a perfect example. Immunity from suit and entitlement to arbitration are others. I cannot see that denying fees to a successfully prevailing litigant for an unsuccessful interlocutory appeal is an appropriate policy to discourage the use of the interlocutory appeal rule. I suspect that in the old days, fees were denied for an unsuccessful appeal simply because no one had thought about the ultimately prevailing party issue addressed in Alcsomitas.

Finally, I prefer the flexibility of Akso-mitas. According to East Coast Metal Decks, fees are never awardable in any measure to the non-prevailing party on appeal. Under Alcsomitas, they are, but are always subject to the appellate court’s determination whether fees for the appeal or events within it are properly allowed.


text:
    Keith L. JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4875.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2014.
    William Mallory Kent, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Gonzalez v. State, 101 So.3d 886, 888 (Fla. 1st DCA 2012).

THOMAS, RAY, and SWANSON, JJ., concur.