Workers’
compensation — Expert medical advisor — Judge of compensation claims erred in
failing to appoint an expert medical advisor where the opinions of two
physicians disagreed as to claimant’s permanent impairment rating — JCC erred
in finding that no disagreement existed because one physician’s opinion had an
insufficient foundation, as it was based on only a records review —
Physician’s opinion had a solid foundation although it was by paper review only
— JCC erred in finding that claimant’s motion for expert medical advisor was
untimely — Claimant may give notice of the need for an EMA without actually
requesting an EMA by motion, and any timeliness problem was cured by giving
notice of need for EMA 32 days before original date of final hearing, and three
full months before final hearing actually took place

GARY A. STEINBERG, Appellant, v. CITY OF TALLAHASSEE/CITY OF
TALLAHASSEE RISK MANAGEMENT, Appellees. 1st District. Case No. 1D15-1794.
Opinion filed February 23, 2016. An appeal from an order of the Judge of
Compensation Claims. Laura Roesch, Judge. Date of Accident: August 20, 2011.
Counsel: Bill McCabe, Longwood, for Appellant. Christopher J. Dubois and Mary
E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellees.

(PER CURIAM.) In this workers’ compensation case, Claimant
appeals an order of the Judge of Compensation Claims (JCC) denying his claims
for additional impairment benefits (IBs) based on the JCC’s accepting one
doctor’s opinion over another doctor’s disagreeing opinion as to the correct
permanent impairment rating (PIR). To resolve the disagreement, Claimant argues
the JCC should instead have appointed an expert medical advisor (EMA). But the
JCC denied Claimant’s motion for an EMA for two reasons: it was untimely, and
no disagreement existed because one opinion had an insufficient foundation. We
reverse the order and remand for appointment of an EMA, for the reasons that
follow.

Development
of the disagreement

Sufficiency
of Dr. Borzak’s opinion

The Employer/Carrier (E/C) asserted that Dr. Borzak’s
opinion was insufficient to create a disagreement because it was based on only
a records review, and an incomplete one at that. The JCC agreed, relying on the
authority the E/C cited, Dawson v. Clerk of Circuit Court — Hillsborough,
991 So. 2d 407 (Fla. 1st DCA 2008). But Dawson envisions a case-specific
inquiry as to whether a doctor’s opinions constitute competent substantial
evidence (CSE) to create a disagreement. Id. at 411 (noting Dr. Greene’s
opinions about shoulder were not CSE because he did not examine claimant’s
shoulder or review medical records pertaining thereto and was not authorized to
treat shoulder).

Dr. Borzak’s opinion here constitutes CSE because it has a
solid foundation. Even though it was by paper review only, nothing in the
definition of “independent medical examination” precludes a records review IME.
See § 440.13(1)(j), Fla. Stat. (2011).1 And even though Dr. Borzak did not
review the two most recent medical notes from Dr. Burkart, that does not make
his review “incomplete” on these facts because those two post-MMI notes do not
bear on an assessment of PIR, which must be assigned at the date of MMI.

Timeliness
of EMA request

The EMA statute does not set a deadline for EMA requests. §
440.13(9)(c), Fla. Stat. (2011).2 The only deadline is found in case
law: EMA requests should not be “unreasonably delayed” once the party is aware
of the disagreement, Palm Springs Gen. Hosp. v. Cabrera, 698 So. 2d
1352, 1354 (Fla. 1st DCA 1997), but made with “reasonable promptness,” AT&T
Wireless v. Frazier, 871 So. 2d 939, 940 (Fla. 1st DCA 2004) (quoted in Romero
v. JB Painting & Waterproofing, Inc., 38 So. 3d 836, 838 (Fla. 1st DCA
2010)).

But a request is not the only way to bring the need for an
EMA to a JCC’s attention. This is a result of a peculiarity in EMA law; even
though a JCC’s statutory duty to appoint an EMA in proper circumstances is
mandatory, see Brown v. Vanguard Sec., 7 So. 3d 572, 573 (Fla.
1st DCA 2009), a JCC’s failure to sua sponte appoint an EMA is not
fundamental error and, thus, such error must be preserved for review. See
Quiroga v. First Baptist Church at Weston, 124 So. 3d 936 (Fla. 1st DCA
2013). A party that requests an EMA must pay for it; in contrast, when a JCC sua
sponte appoints an EMA, the cost falls on the E/C. § 440.13(9)(f), Fla.
Stat. (2011). Accordingly, a claimant, to preserve his appellate rights, may
give notice of the need for an EMA without actually requesting an EMA by motion
(or incurring the cost), thus either ensuring appointment of an EMA or
preserving the error. Banuchi v. Dep’t of Corr., 122 So. 3d 999, 1001
(Fla. 1st DCA 2013).

Here, Claimant gave the JCC two “Banuchi notices”
before filing a motion requesting an EMA. Moreover, other timing issues in the
proceedings below made it such that Claimant’s notices and motion were not
unreasonably delayed. Specifically, although a disagreement as to the PIR
existed as of June 2014, and Claimant was aware of it by the time he signed the
pretrial stipulation in October 2014 (on which Claimant expressly indicated the
existence of the conflict), Dr. Burkart did not explain the reason for his
change in PIR until deposed on December 5, 2014. Claimant filed a first Banuchi
notice six days later (32 days before the originally scheduled date of final
hearing), and a second Banuchi notice on January 6, 2015 (five days
before the originally scheduled date of final hearing). Adding a layer of
complexity, Dr. Borzak’s deposition was temporarily excluded from evidence by
order of February 10, 2015, which was struck February 24, 2015. Finally,
Claimant filed his motion requesting an EMA only ten days later, on March 6,
2015 (five days before the rescheduled final hearing took place — and possibly
also before the final hearing date was set).

The first Banuchi notice cured any timeliness problem
in the instant case because the purpose of an EMA request is not to give the opposing
litigant notice, but to inform the JCC of her mandatory duty early
enough not to disrupt orderly proceedings. See Quiroga, 124 So.
3d at 938 (“The need for predictable and orderly proceedings (removing
incentives for a party to wait until after the outcome of the case is decided
before insisting on the appointment of an EMA) is the very reason why this
court has consistently held that an EMA must be requested timely by the party
seeking such relief on appeal.”). This is why the cases on reasonable delay
address, not just the time since learning of the disagreement, but also the
time before the final hearing. See Cabrera, 698 So. 2d at 1353-54
(timely at five days after awareness of disagreement); Romero, 38 So. 3d
at 837-40 (timely at seven weeks when made the day of the expedited hearing); Walsdorf
Sheet Metal Works, Inc. v. Gonzalez, 719 So. 2d 355 (Fla. 1st DCA 1998)
(untimely at five months when requested at close of final hearing); W.S.
Badcock Corp. v. Knight, 720 So. 2d 619 (Fla. 1st DCA 1998) (untimely at
nine months when requested two days before final hearing); Arvida River
Hills Country Club v. Van Slyke, 728 So. 2d 1213, 1214 (Fla. 1st DCA 1999)
(untimely when requested nine days after rendition of order awarding
compensation, where all medical testimony was adduced in pretrial depositions).
In the instant case, the first Banuchi notice was filed, not only 32
days before the original date of final hearing, but three full months before
the final hearing actually took place.

Conclusion

Under the facts of the instant case, Claimant’s EMA request
was timely, and the disagreement required an EMA; consequently, the JCC erred
in not appointing an EMA.

REVERSED and REMANDED for further proceedings in accordance
with this opinion. (ROWE, RAY, and SWANSON, JJ., CONCUR)

__________________

1“ ‘Independent medical examination’
means an objective evaluation for the injured employee’s medical condition,
including, but not limited to, impairment or work status, performed by a
physician or an [EMA] at the request of a party, a [JCC], or the department to
assist in the resolution of a dispute arising under this chapter.”

2“If there is disagreement in the
opinions of the health care providers, . . . 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].”

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