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In Florida, medical disputes before the Judge of Compensation Claims (JCC) are often handled with the appointment by the JCC of an Expert Medical Advisor (EMA). F.S. 440.13(9)(c) states in part:
If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor.
The opinion of an EMA is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC. Thus, the appointment of an EMA in effect takes the litigation out of the JCC’s hands and the opinion of the EMA will for the most part decide the disputed medical issues before him or her. The presumption of correctness only attaches to the opinions responding to the precise questions asked of the EMA.
The First District Court of Appeal which hears all workers’ compensation appeals in Florida, recently issued two decisions involving EMAs. The first case is ABM Industries, Inc. and ACE/ESIS v. Valencia, No. 1D20-2027 (Fla. 1st DCA 2021). In this particular case, the employer made an argument that the opinions of a physician chosen by the claimant through the one-time change of physician statute were not admissible. However, as a contingent argument, the employer argued that if the opinions of the claimant selected physician were admissible, then the JCC must appoint an EMA because the claimant’s new physician has conflicting medical opinions with the prior treating physician. The JCC after trial ordered that there was no dispute requiring the appointment of an EMA because it was not until the entry of judgment that the claimant’s new treating physician became authorized.
The First DCA reversed and rejected this reasoning as flawed as a matter of both logic and law. The appellate court held that the instant the JCC determined the claimant’s newly selected physician was authorized, it required the appointment of an EMA in light of the record conflict in the medical opinions. While not groundbreaking this holding is an extension of existing case law from the First DCA that it is mandatory the JCC appoint an EMA when a disagreement exists between the opinions of two healthcare providers. This is so even if the conflict becomes apparent after trial begins.
In another case, the Florida First DCA reaffirmed the necessity of appointing an EMA where conflicts in the medical evidence exist. In Shelton v. Pasco County Board of Commissioners, No. 1D20-3511 (Fla. 1st DCA 2021), the JCC did appoint an EMA who evaluated the claimant due to several conflicts in the medical evidence. At trial the JCC struck the EMA’s opinions based on a Daubert objection raised by the claimant. The claimant moved for the appointment of a successor EMA, which the JCC denied. The First DCA reversed the JCC once again holding that where conflicts exist in the medical evidence, an EMA must be appointed. The striking of the EMA’s testimony and report did not resolve those conflicts so an alternate had to be appointed. The end result was a remand with instructions to appoint an EMA for resolution of the conflicts in the medical testimony.
Robert J. Grace, Jr.
Bleakley Bavol Denman & Grace
15316 N. Florida Avenue
Tampa, FL 33613
 Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), codified at Section 90.702, Florida Statutes.