Andrews v. McKim & Creed and Travelers Property Casualty
In a workers' compensation appeal, the First DCA reversed a JCC order denying authorization of the claimant's self-selected one-time change physician. The court held the E/C's unpleaded waiver defense (raised for the first time in a trial memorandum days before hearing) violated due process and was not tried by consent, that voluntary dismissal of a petition for benefits did not extinguish the claimant's already-vested right of selection under section 440.13(2)(f), and that the JCC erred by refusing to follow binding precedent (City of Bartow v. Flores) and by imposing a 'self-help' medical-necessity burden on the claimant.
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