41 Fla. L. Weekly D584a
Top of Form
Workers’
compensation — Evidence — Expert medical advisor’s opinion — Presumption of
correctness — Scope of presumption — Where expert medical advisor was
appointed to resolve conflicting medical opinions as to whether rotator cuff
repair surgery was medically necessary and, if so, whether major contributing
cause of need for surgery was compensable accident, presumption of correctness
applied only to EMA’s opinion on those issues — Opinions voiced by EMA which
“exceed the scope” of the parties’ perceived disagreement are still admissible,
but are not presumptively correct — Accordingly, judge of compensation claims
abused his discretion when he excluded EMA’s relevant opinions regarding
apportionment due to claimant’s pre-existing condition, an issue asserted as an
affirmative defense for the first time in the parties’ pretrial stipulations
compensation — Evidence — Expert medical advisor’s opinion — Presumption of
correctness — Scope of presumption — Where expert medical advisor was
appointed to resolve conflicting medical opinions as to whether rotator cuff
repair surgery was medically necessary and, if so, whether major contributing
cause of need for surgery was compensable accident, presumption of correctness
applied only to EMA’s opinion on those issues — Opinions voiced by EMA which
“exceed the scope” of the parties’ perceived disagreement are still admissible,
but are not presumptively correct — Accordingly, judge of compensation claims
abused his discretion when he excluded EMA’s relevant opinions regarding
apportionment due to claimant’s pre-existing condition, an issue asserted as an
affirmative defense for the first time in the parties’ pretrial stipulations
LOWE’S HOME CENTERS, INC. AND SEDGWICK CMS, Appellants, v.
SANDRA K. BEEKMAN, Appellee. 1st District. Case No. 1D15-2639. Opinion filed
March 4, 2016. An appeal from an order of the Judge of Compensation Claims.
Stephen L. Rosen, Judge. Date of Accident: July 17, 2013. Counsel: Kevin S.
Murphy and Thomas A. Moore of Quintairos, Prieto, Wood & Boyer, P.A.,
Orlando, for Appellants. Kimberly A. Hill of Kimberly A. Hill, P.L., Fort
Lauderdale, for Appellee.
SANDRA K. BEEKMAN, Appellee. 1st District. Case No. 1D15-2639. Opinion filed
March 4, 2016. An appeal from an order of the Judge of Compensation Claims.
Stephen L. Rosen, Judge. Date of Accident: July 17, 2013. Counsel: Kevin S.
Murphy and Thomas A. Moore of Quintairos, Prieto, Wood & Boyer, P.A.,
Orlando, for Appellants. Kimberly A. Hill of Kimberly A. Hill, P.L., Fort
Lauderdale, for Appellee.
(LEWIS, Judge.) In this workers’ compensation appeal, the
Employer/Carrier (E/C) raises three issues, although the second and third
issues are essentially subsumed within each other. We affirm without comment as
to the first issue — whether the Judge of Compensation Claims (JCC) had
jurisdiction to adjudicate the E/C’s affirmative defense of apportionment. We
reverse, however, as to the second and third issues for the reasons that
follow, and remand this matter for further proceedings.
Employer/Carrier (E/C) raises three issues, although the second and third
issues are essentially subsumed within each other. We affirm without comment as
to the first issue — whether the Judge of Compensation Claims (JCC) had
jurisdiction to adjudicate the E/C’s affirmative defense of apportionment. We
reverse, however, as to the second and third issues for the reasons that
follow, and remand this matter for further proceedings.
Claimant’s September 2014 petition for benefits requested authorization
for right shoulder surgery. Thereafter, Claimant filed a notice of conflict
advising the JCC that a disagreement existed between two of Claimant’s
physicians as to whether she was in need of rotator cuff repair surgery. The
JCC found there was a disagreement in the medical opinions of two physicians
with regard to diagnosis, causal relationship, and the recommended course of
treatment for Claimant’s right shoulder; thus, he found it was appropriate to
appoint an expert medical advisor (EMA).
for right shoulder surgery. Thereafter, Claimant filed a notice of conflict
advising the JCC that a disagreement existed between two of Claimant’s
physicians as to whether she was in need of rotator cuff repair surgery. The
JCC found there was a disagreement in the medical opinions of two physicians
with regard to diagnosis, causal relationship, and the recommended course of
treatment for Claimant’s right shoulder; thus, he found it was appropriate to
appoint an expert medical advisor (EMA).
In a February 5, 2015, letter to the EMA, Dr. Vega, the JCC
advised the doctor that “[t]he following issues must be addressed in your
report: 1. Is surgery medically necessary for the claimant’s right shoulder? 2.
If surgery is medically necessary for the claimant’s right shoulder, is the
July 17, 2013 date of accident the major contributing cause of the need for the
surgery?” Also on February 5, the parties filed pretrial stipulations that
included, for the first time, an affirmative defense that “[s]hould the JCC
find for Claimant, then the E/[C] is entitled to apportionment due to
Claimant’s pre-existing condition.” In the course of testifying by deposition
on April 21, 2015, Dr. Vega, opined that Claimant’s condition was an
aggravation of a pre-existing condition.
advised the doctor that “[t]he following issues must be addressed in your
report: 1. Is surgery medically necessary for the claimant’s right shoulder? 2.
If surgery is medically necessary for the claimant’s right shoulder, is the
July 17, 2013 date of accident the major contributing cause of the need for the
surgery?” Also on February 5, the parties filed pretrial stipulations that
included, for the first time, an affirmative defense that “[s]hould the JCC
find for Claimant, then the E/[C] is entitled to apportionment due to
Claimant’s pre-existing condition.” In the course of testifying by deposition
on April 21, 2015, Dr. Vega, opined that Claimant’s condition was an
aggravation of a pre-existing condition.
After hearing argument on Claimant’s motion to strike Dr.
Vega’s testimony relating to the issue of apportionment, the JCC granted the
motion in part. The JCC noted that neither party requested that a question be
posed to the EMA specifically addressing apportionment. Further, the JCC found
that the EMA’s report did not address apportionment between any pre-existing
conditions and the workplace accident; rather, the apportionment questions were
raised for the first time in the deposition. The JCC announced that he would
not rely on any opinions rendered by Dr. Vega regarding apportionment.
Vega’s testimony relating to the issue of apportionment, the JCC granted the
motion in part. The JCC noted that neither party requested that a question be
posed to the EMA specifically addressing apportionment. Further, the JCC found
that the EMA’s report did not address apportionment between any pre-existing
conditions and the workplace accident; rather, the apportionment questions were
raised for the first time in the deposition. The JCC announced that he would
not rely on any opinions rendered by Dr. Vega regarding apportionment.
On appeal, the E/C takes issue with the JCC’s exclusion of
the EMA’s opinion on apportionment, arguing in its second and third issues that
the JCC erred as a matter of law in excluding relevant medical evidence. The
exclusion of evidence is reviewed under an abuse of discretion standard. See
Escutia v. Greenleaf Prods., Inc., 886 So. 2d 1059, 1060 (Fla. 1st DCA
2004). To the extent resolution of this issue requires statutory
interpretation, the standard of review is de novo. See Lombardi v. S.
Wine & Spirits, 890 So. 2d 1128, 1129 (Fla. 1st DCA 2004).
the EMA’s opinion on apportionment, arguing in its second and third issues that
the JCC erred as a matter of law in excluding relevant medical evidence. The
exclusion of evidence is reviewed under an abuse of discretion standard. See
Escutia v. Greenleaf Prods., Inc., 886 So. 2d 1059, 1060 (Fla. 1st DCA
2004). To the extent resolution of this issue requires statutory
interpretation, the standard of review is de novo. See Lombardi v. S.
Wine & Spirits, 890 So. 2d 1128, 1129 (Fla. 1st DCA 2004).
Because this question is one which has not been previously
addressed — how broad is the brush of the presumption of correctness given to
an opinion of an EMA — we begin our analysis with a review of the relevant
statutory provisions. Section 440.13(9), Florida Statutes (2013), the provision
addressing EMAs, provides in subsection (a) that EMAs are to be certified “to
assist . . . the [JCCs] within the advisor’s area of expertise.” Subsection (b)
provides that EMAs are intended “to provide peer review or expert medical
consultation, opinions, and testimony . . . to a [JCC] in connection with
resolving disputes relating to reimbursement, differing opinions of health care
providers . . . .” § 440.13(9)(b), Fla. Stat. (2013). Subsection (9)(c) in its
entirety provides:
addressed — how broad is the brush of the presumption of correctness given to
an opinion of an EMA — we begin our analysis with a review of the relevant
statutory provisions. Section 440.13(9), Florida Statutes (2013), the provision
addressing EMAs, provides in subsection (a) that EMAs are to be certified “to
assist . . . the [JCCs] within the advisor’s area of expertise.” Subsection (b)
provides that EMAs are intended “to provide peer review or expert medical
consultation, opinions, and testimony . . . to a [JCC] in connection with
resolving disputes relating to reimbursement, differing opinions of health care
providers . . . .” § 440.13(9)(b), Fla. Stat. (2013). Subsection (9)(c) in its
entirety provides:
If
there is a 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 [JCC] 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 [EMA]. The
opinion of the [EMA] is presumed to be correct unless there is clear and convincing
evidence to the contrary as determined by the [JCC]. The [EMA] 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.
there is a 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 [JCC] 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 [EMA]. The
opinion of the [EMA] is presumed to be correct unless there is clear and convincing
evidence to the contrary as determined by the [JCC]. The [EMA] 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.
§ 440.13(9)(c), Fla. Stat. (2013). Thus, subsection (9)(c)
references both general disagreements between health care providers and
specific disagreements. It then simply states that “[t]he opinion of the [EMA]
is presumed to be correct.” Id. Section 440.25(4)(d), Florida Statutes
(2013), provides in part:
references both general disagreements between health care providers and
specific disagreements. It then simply states that “[t]he opinion of the [EMA]
is presumed to be correct.” Id. Section 440.25(4)(d), Florida Statutes
(2013), provides in part:
When
there is a conflict in the medical evidence submitted at the hearing, the
provisions of s. 440.13 shall apply. The report or testimony of the [EMA] shall
be admitted into evidence in a proceeding and all costs incurred in connection
with such examination and testimony may be assessed as costs in the proceeding,
subject to the provision of s. 440.13.
there is a conflict in the medical evidence submitted at the hearing, the
provisions of s. 440.13 shall apply. The report or testimony of the [EMA] shall
be admitted into evidence in a proceeding and all costs incurred in connection
with such examination and testimony may be assessed as costs in the proceeding,
subject to the provision of s. 440.13.
The process used in this case — whereby the JCC posed
specific questions to the EMA — is one that has developed over time. The
procedural rules relating to workers’ compensation claims provide only general
guidance regarding any procedures that may be used. Florida Administrative Code
Rule 69L-30.005(3) provides: “When [EMA] services are needed in a proceeding
before a [JCC], the [JCC] shall: (a) Select an [EMA] from the Department’s list
of certified [EMAs]; and (b) Make the necessary arrangements for the [EMA] to
provide the [EMA] services.” Florida Administrative Code Rule 69L-30.007(2)
provides:
specific questions to the EMA — is one that has developed over time. The
procedural rules relating to workers’ compensation claims provide only general
guidance regarding any procedures that may be used. Florida Administrative Code
Rule 69L-30.005(3) provides: “When [EMA] services are needed in a proceeding
before a [JCC], the [JCC] shall: (a) Select an [EMA] from the Department’s list
of certified [EMAs]; and (b) Make the necessary arrangements for the [EMA] to
provide the [EMA] services.” Florida Administrative Code Rule 69L-30.007(2)
provides:
When
the [JCC] selects an [EMA], the [EMA] shall complete and submit a written
report to the [JCC] within 15-calendar days following receipt of all medical
records and examination of the injured employee. The medical records, which may
be submitted to an [EMA] shall be within the discretion of the [JCC].
the [JCC] selects an [EMA], the [EMA] shall complete and submit a written
report to the [JCC] within 15-calendar days following receipt of all medical
records and examination of the injured employee. The medical records, which may
be submitted to an [EMA] shall be within the discretion of the [JCC].
Neither the plain language of section 440.13(9)(c) nor the
rules subsequently promulgated offer guidance regarding the question presented
in this case: In assessing the role of the EMA, how broadly do we apply the
presumption of correctness? Because the statute is ambiguous as to the scope of
the presumption of correctness of EMA opinions, we look to legislative intent
for guidance. See Russell v. Orange Cty. Pub. Sch. Transp., 36
So. 3d 743, 745 (Fla. 1st DCA 2010) (restating that when a statute is ambiguous
or unclear on its face, courts must examine legislative intent) (citing Murray
v. Mariner Health, 994 So. 2d 1051 (Fla. 2008)). The JCC’s comments, at the
hearing and in his order, regarding the EMA’s role are based on language from
cases emanating from this Court: “It is apparent that the legislature’s intent
was to create a mechanism by which an independent medical expert would offer
assistance to the [JCC] when he or she is faced with conflicting medical
evidence from the parties’ experts.” Broward Children’s Ctr., Inc. v. Hall,
859 So. 2d 623, 626 (Fla. 1st DCA 2003).
rules subsequently promulgated offer guidance regarding the question presented
in this case: In assessing the role of the EMA, how broadly do we apply the
presumption of correctness? Because the statute is ambiguous as to the scope of
the presumption of correctness of EMA opinions, we look to legislative intent
for guidance. See Russell v. Orange Cty. Pub. Sch. Transp., 36
So. 3d 743, 745 (Fla. 1st DCA 2010) (restating that when a statute is ambiguous
or unclear on its face, courts must examine legislative intent) (citing Murray
v. Mariner Health, 994 So. 2d 1051 (Fla. 2008)). The JCC’s comments, at the
hearing and in his order, regarding the EMA’s role are based on language from
cases emanating from this Court: “It is apparent that the legislature’s intent
was to create a mechanism by which an independent medical expert would offer
assistance to the [JCC] when he or she is faced with conflicting medical
evidence from the parties’ experts.” Broward Children’s Ctr., Inc. v. Hall,
859 So. 2d 623, 626 (Fla. 1st DCA 2003).
Certainly, the EMA is charged with addressing the questions
posed by the JCC which are framed by the disagreements identified by the
parties and the JCC. We are faced with the issues, however, of what happens if
the EMA, after examining the claimant, rejects all of the previous assessments
and raises questions and renders opinions that neither party considered and
whether those opinions are admissible.
posed by the JCC which are framed by the disagreements identified by the
parties and the JCC. We are faced with the issues, however, of what happens if
the EMA, after examining the claimant, rejects all of the previous assessments
and raises questions and renders opinions that neither party considered and
whether those opinions are admissible.
Given that the evidence code in sections 90.401 and 90.402,
Florida Statutes (2013), generally provides that all relevant evidence, that
is, evidence tending to prove or disprove material facts, is admissible, it
follows that all of the opinions of an EMA are indeed admissible. It is in this
vein that we determined in Dawson v. Clerk of Circuit Court — Hillsborough
County, 991 So. 2d 407, 410-11 (Fla. 1st DCA 2008), that a physician
authorized to treat only the claimant’s wrist was nonetheless an “authorized
treating physician” whose testimony concerning the claimant’s shoulder was
admissible under section 440.13(5)(e), Florida Statutes (2004), which provides
that “[n]o medical opinion other than the opinion of a[n EMA], and independent
medical examiner, or an authorized treating provider is admissible in
proceedings before the [JCCs]”. Whether the testimony was sufficient to create
a disagreement between health care providers was another matter — one to be
determined by the JCC based on the weight and credibility afforded the opinion
by the JCC. Because an EMA is one of the three specifically enumerated medical
experts whose opinions are admissible, the logic in Dawson supports
admissibility of all of the EMA’s opinions.
Florida Statutes (2013), generally provides that all relevant evidence, that
is, evidence tending to prove or disprove material facts, is admissible, it
follows that all of the opinions of an EMA are indeed admissible. It is in this
vein that we determined in Dawson v. Clerk of Circuit Court — Hillsborough
County, 991 So. 2d 407, 410-11 (Fla. 1st DCA 2008), that a physician
authorized to treat only the claimant’s wrist was nonetheless an “authorized
treating physician” whose testimony concerning the claimant’s shoulder was
admissible under section 440.13(5)(e), Florida Statutes (2004), which provides
that “[n]o medical opinion other than the opinion of a[n EMA], and independent
medical examiner, or an authorized treating provider is admissible in
proceedings before the [JCCs]”. Whether the testimony was sufficient to create
a disagreement between health care providers was another matter — one to be
determined by the JCC based on the weight and credibility afforded the opinion
by the JCC. Because an EMA is one of the three specifically enumerated medical
experts whose opinions are admissible, the logic in Dawson supports
admissibility of all of the EMA’s opinions.
We have addressed the circumstance whereby the EMA had no
opinion on the question put to him by the JCC. In Fitzgerald v. Osceola
County School Board, 974 So. 2d 1161, 1163 (Fla. 1st DCA 2008), “the EMA
offered opinions relevant [to the issues at hand], but . . . ultimately he was
inconclusive about both issues.” Nevertheless, we resolved that simply because
“Dr. Haim did not offer a definitive opinion does not mean the JCC could not
have used the opinions Dr. Haim did formulate in resolving this case.” Id.
at 1163. In resolution of this dilemma, we explained:
opinion on the question put to him by the JCC. In Fitzgerald v. Osceola
County School Board, 974 So. 2d 1161, 1163 (Fla. 1st DCA 2008), “the EMA
offered opinions relevant [to the issues at hand], but . . . ultimately he was
inconclusive about both issues.” Nevertheless, we resolved that simply because
“Dr. Haim did not offer a definitive opinion does not mean the JCC could not
have used the opinions Dr. Haim did formulate in resolving this case.” Id.
at 1163. In resolution of this dilemma, we explained:
Dr.
Haim’s testimony can certainly be read here as raising doubts on aspects of the
testimony of both IMEs. Accordingly, this testimony established a metric by
which the JCC might measure the credibility and weight of all the other
evidence presented, even though Dr. Haim was not conclusive on the ultimate
issues in this case. We reject claimant’s argument that she is entitled to
judgment as a matter of law, and remand this matter in order to allow the JCC
to conduct the analysis we have suggested.
Haim’s testimony can certainly be read here as raising doubts on aspects of the
testimony of both IMEs. Accordingly, this testimony established a metric by
which the JCC might measure the credibility and weight of all the other
evidence presented, even though Dr. Haim was not conclusive on the ultimate
issues in this case. We reject claimant’s argument that she is entitled to
judgment as a matter of law, and remand this matter in order to allow the JCC
to conduct the analysis we have suggested.
Id. at 1164. Thus, the EMA’s opinion —
or non-opinion — was not presumptive; rather, it was deemed a part of the
overall picture from which the JCC could draw conclusions. We set forth that
“[a]lthough our construction of this statute imputes ‘nearly conclusive effect’
to the EMA’s opinion, we have made equally clear the proposition that the EMA’s
opinion is, at bottom, a source of ‘assistance’ to the JCC.” Id.
(citations omitted). By analogy, those opinions voiced by an EMA which “exceed
the scope” of the perceived disagreement would be admissible — but not
presumptively correct. Therefore, the opinions intended to carry the
presumption of correctness are only those that address already
identified disagreements in medical opinions; all other medical opinions
expressed by the EMA carry the same weight as that of an independent medical
examiner or an authorized treating physician.
or non-opinion — was not presumptive; rather, it was deemed a part of the
overall picture from which the JCC could draw conclusions. We set forth that
“[a]lthough our construction of this statute imputes ‘nearly conclusive effect’
to the EMA’s opinion, we have made equally clear the proposition that the EMA’s
opinion is, at bottom, a source of ‘assistance’ to the JCC.” Id.
(citations omitted). By analogy, those opinions voiced by an EMA which “exceed
the scope” of the perceived disagreement would be admissible — but not
presumptively correct. Therefore, the opinions intended to carry the
presumption of correctness are only those that address already
identified disagreements in medical opinions; all other medical opinions
expressed by the EMA carry the same weight as that of an independent medical
examiner or an authorized treating physician.
The Legislature has made it clear that cases are to be
decided on their merits. See § 440.015, Fla. Stat. (2013) (“It is the
specific intent of the Legislature that workers’ compensation cases shall be
decided on their merits.”). Ignoring a medical opinion that is relevant to an
issue before the JCC is not in keeping with that explicitly-stated legislative
intent. Granted, there could be procedural problems; for example, parties may
have to seek continuances to address new issues. This Court has recognized that
all cases cannot at all times be completed in the shortest timeframe. See
Hall, 859 So. 2d at 627-28 (acknowledging that working out the
complicated EMA process may cause delay in the resolution of the case).
decided on their merits. See § 440.015, Fla. Stat. (2013) (“It is the
specific intent of the Legislature that workers’ compensation cases shall be
decided on their merits.”). Ignoring a medical opinion that is relevant to an
issue before the JCC is not in keeping with that explicitly-stated legislative
intent. Granted, there could be procedural problems; for example, parties may
have to seek continuances to address new issues. This Court has recognized that
all cases cannot at all times be completed in the shortest timeframe. See
Hall, 859 So. 2d at 627-28 (acknowledging that working out the
complicated EMA process may cause delay in the resolution of the case).
Based on the forgoing, we conclude the JCC abused his
discretion in excluding Dr. Vega’s relevant opinions regarding apportionment.
We remand this matter to the JCC for application of the foregoing analysis and
to assign the EMA’s opinions the appropriate weight. On remand, the parties
should be afforded the opportunity to reopen the medical evidence to address
the apportionment issue.
discretion in excluding Dr. Vega’s relevant opinions regarding apportionment.
We remand this matter to the JCC for application of the foregoing analysis and
to assign the EMA’s opinions the appropriate weight. On remand, the parties
should be afforded the opportunity to reopen the medical evidence to address
the apportionment issue.
AFFIRMED in part, REVERSED in part, and REMANDED for
proceedings consistent with this opinion. (SWANSON and WINOKUR, JJ., CONCUR.)
proceedings consistent with this opinion. (SWANSON and WINOKUR, JJ., CONCUR.)
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