State News : Florida

While there were not many changes to Florida’s workers’ compensation statute during our recent legislative session, there was one change which was significant and has already become law.  In 1994 Florida passed a statute providing for the use of an expert medical advisor (EMA) in contested workers’ compensation cases.  While there are a number of subsections which specify how the EMA process works, Fla. Stat. 440.13(9)(c) addressed when and how an EMA is to be appointed.

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 injured employee and the employer or carrier may agree on the health care provider to serve as an expert medical advisor. If the parties do not agree, the judge of compensation claims shall select an expert medical advisor from the department’s list of certified expert medical advisors. If a certified medical advisor within the relevant medical specialty is unavailable, the judge of compensation claims shall appoint any otherwise qualified health care provider to serve as an expert medical advisor without obtaining the department’s certification. The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims. The expert medical advisor appointed to conduct the evaluation shall have free and complete access to the medical records of the employee. An employee who fails to report to and cooperate with such evaluation forfeits entitlement to compensation during the period of failure to report or cooperate.

Over the course of almost 30 years the word “shall” in the statute was interpreted to make the appointment of an EMA mandatory giving the judge of compensation claims very little discretion. Appointments of an EMA have been most common in cases where authorization of a surgery was disputed, whether MMI was reached and applicable permanent restrictions.  A presumption of correctness is attached to the EMA’s opinion and the report of the EMA automatically comes into evidence.  The “clear and convincing” evidentiary standard was difficult to overcome despite many attorneys doing their best in deposing the EMA and extensively probing his or her opinions.  Because the parties rarely could agree on the appointment of an EMA the JCC was required to appoint one.  It often was a difficult chore if a specialist outside of orthopedics, neurology or neurosurgery was necessary.  It was also difficult to find a doctor in some of Florida’s more rural areas.

Effective May 25, 2023 the word “shall” was replaced with the word “may.”  This gives the JCC almost complete discretion to appoint an EMA in a disputed case.  Particular attention will be paid to when an EMA is requested and whether the medical issue is fairly routine as opposed to something arcane and unusual.  Because Florida’s workers’ compensation statute requires a final hearing to take place no later than 210 days after a petition is filed, fewer cases will now go past that deadline.  It is expected that there will likely be a dramatic drop in the number of EMA’s appointed by our JCC’s.