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Fla. L. Weekly D1450cTop of Form
Fla. L. Weekly D1450cTop of Form
Workers’
compensation — Temporary partial disability — Evidence — Expert medical
advisor’s opinion — Judge of compensation claims erred in rejecting EMA’s
opinion that claimant is at maximum medical improvement and that accident was
not major contributing cause of claimant’s neck condition without articulating
findings of clear and convincing evidence to reject opinion
compensation — Temporary partial disability — Evidence — Expert medical
advisor’s opinion — Judge of compensation claims erred in rejecting EMA’s
opinion that claimant is at maximum medical improvement and that accident was
not major contributing cause of claimant’s neck condition without articulating
findings of clear and convincing evidence to reject opinion
BAYCARE HOME CARE MEDICAL SUPPLY and
COMMERCIAL RISK MANAGEMENT, Appellants, v. ANIBAL SANTIAGO, Appellee. 1st
District. Case No. 1D16-845. Opinion filed June 27, 2017. An appeal from an
order of the Judge of Compensation Claims. Margaret R. Sojourner, Judge. Date
of Accident: August 30, 2013. Counsel: Warren K. Sponsler and Janelle G. Koren
of Sponsler, Bishop, Koren & Hammer, PA, Tampa, for Appellants. Craig O.
Stewart of Morgan & Morgan, PA, Tampa, and Wendy S. Loquasto of Fox &
Loquasto, PA, Tallahassee, for Appellee.
COMMERCIAL RISK MANAGEMENT, Appellants, v. ANIBAL SANTIAGO, Appellee. 1st
District. Case No. 1D16-845. Opinion filed June 27, 2017. An appeal from an
order of the Judge of Compensation Claims. Margaret R. Sojourner, Judge. Date
of Accident: August 30, 2013. Counsel: Warren K. Sponsler and Janelle G. Koren
of Sponsler, Bishop, Koren & Hammer, PA, Tampa, for Appellants. Craig O.
Stewart of Morgan & Morgan, PA, Tampa, and Wendy S. Loquasto of Fox &
Loquasto, PA, Tallahassee, for Appellee.
(PER CURIAM.) Anibal Santiago
claimed he injured his neck while unloading a hospital bed for delivery.
Multiple doctors examined Santiago, and several came to the conclusion that the
neck injury resulted from a preexisting degenerative condition. Others,
however, determined the accident caused the injury. After Santiago filed a
petition seeking temporary partial disability benefits, the judge of
compensation claims appointed an expert medical advisor to examine Santiago and
resolve the conflict. See § 440.13(9)(c), Fla. Stat. (2013) (authorizing
the JCC to appoint an EMA when there is a disagreement in the opinions of the
health care providers).
claimed he injured his neck while unloading a hospital bed for delivery.
Multiple doctors examined Santiago, and several came to the conclusion that the
neck injury resulted from a preexisting degenerative condition. Others,
however, determined the accident caused the injury. After Santiago filed a
petition seeking temporary partial disability benefits, the judge of
compensation claims appointed an expert medical advisor to examine Santiago and
resolve the conflict. See § 440.13(9)(c), Fla. Stat. (2013) (authorizing
the JCC to appoint an EMA when there is a disagreement in the opinions of the
health care providers).
In his report, the EMA concluded
that Santiago had both a degenerative condition to his cervical spine as well
as a cervical strain. The EMA opined that the accident caused the latter injury
but that Santiago had fully recuperated from it. The EMA placed Santiago at
maximum medical improvement with zero impairment. At his subsequent deposition,
however, the EMA’s conclusions were less clear. While he did testify that
Santiago had a preexisting degenerative disk condition and also probably
suffered from a cervical strain, he offered contradictory statements on whether
the accident was the major contributing cause of the injury and whether
Santiago was at MMI.1
that Santiago had both a degenerative condition to his cervical spine as well
as a cervical strain. The EMA opined that the accident caused the latter injury
but that Santiago had fully recuperated from it. The EMA placed Santiago at
maximum medical improvement with zero impairment. At his subsequent deposition,
however, the EMA’s conclusions were less clear. While he did testify that
Santiago had a preexisting degenerative disk condition and also probably
suffered from a cervical strain, he offered contradictory statements on whether
the accident was the major contributing cause of the injury and whether
Santiago was at MMI.1
The JCC subsequently entered a final
order awarding Santiago TPD benefits. In the order, the JCC acknowledged that
the EMA’s report agreed with the findings of the previous doctors that Santiago
suffered from a preexisting condition unrelated to the accident and was at MMI.
While noting that the EMA’s deposition testimony was “not a model of clarity,”
the JCC also cited the portion of the testimony in which the EMA noted the
accident was not the MCC of Santiago’s condition. The JCC concluded that while
Santiago had a preexisting degenerative disc disease, it was not “legally a
pre-existing condition” because Santiago was asymptomatic and without treatment
or disability before the accident. Therefore, the JCC concluded, “the issue of
major contributing cause should not be considered.” Ultimately, the JCC found
Santiago was not at MMI and authorized TPD benefits. The employer/carrier
appeal.
order awarding Santiago TPD benefits. In the order, the JCC acknowledged that
the EMA’s report agreed with the findings of the previous doctors that Santiago
suffered from a preexisting condition unrelated to the accident and was at MMI.
While noting that the EMA’s deposition testimony was “not a model of clarity,”
the JCC also cited the portion of the testimony in which the EMA noted the
accident was not the MCC of Santiago’s condition. The JCC concluded that while
Santiago had a preexisting degenerative disc disease, it was not “legally a
pre-existing condition” because Santiago was asymptomatic and without treatment
or disability before the accident. Therefore, the JCC concluded, “the issue of
major contributing cause should not be considered.” Ultimately, the JCC found
Santiago was not at MMI and authorized TPD benefits. The employer/carrier
appeal.
The same statute that authorizes a
JCC to appoint an EMA also imposes a presumption of correctness on the EMA’s
subsequent opinion. See § 440.13(9)(c) (“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.”).
In fact, we have gone so far as to note that an EMA’s opinion has a “nearly
conclusive effect.” Mobile Med. Indus. v. Quinn, 985 So. 2d 33, 36 (Fla.
1st DCA 2008) (quoting Pierre v. Handi Van, Inc., 717 So. 2d 1115, 1117
(Fla. 1st DCA 1998)). A JCC must find and articulate its reasons to reject an
EMA’s opinion. See Certistaff, Inc. v. Owen, 181 So. 3d 1218,
1221 (Fla. 1st DCA 2015) (citing Mobile, 985 So. 2d at 36).
JCC to appoint an EMA also imposes a presumption of correctness on the EMA’s
subsequent opinion. See § 440.13(9)(c) (“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.”).
In fact, we have gone so far as to note that an EMA’s opinion has a “nearly
conclusive effect.” Mobile Med. Indus. v. Quinn, 985 So. 2d 33, 36 (Fla.
1st DCA 2008) (quoting Pierre v. Handi Van, Inc., 717 So. 2d 1115, 1117
(Fla. 1st DCA 1998)). A JCC must find and articulate its reasons to reject an
EMA’s opinion. See Certistaff, Inc. v. Owen, 181 So. 3d 1218,
1221 (Fla. 1st DCA 2015) (citing Mobile, 985 So. 2d at 36).
While the EMA’s deposition testimony
was not always clear and consistent, his report clearly indicated his opinion
that Santiago is at MMI and that the accident was not the MCC of his neck
condition. The JCC failed to articulate any findings of clear and convincing
evidence to reject that opinion. Accordingly, we reverse and remand to allow
the JCC to accept the EMA’s conclusion or make the necessary findings to reject
it. See Arnau v. Winn-Dixie Stores, Inc., 76 So. 3d 1117, 1118
(Fla. 1st DCA 2011).2
was not always clear and consistent, his report clearly indicated his opinion
that Santiago is at MMI and that the accident was not the MCC of his neck
condition. The JCC failed to articulate any findings of clear and convincing
evidence to reject that opinion. Accordingly, we reverse and remand to allow
the JCC to accept the EMA’s conclusion or make the necessary findings to reject
it. See Arnau v. Winn-Dixie Stores, Inc., 76 So. 3d 1117, 1118
(Fla. 1st DCA 2011).2
REVERSED and REMANDED. (ROBERTS,
C.J., and JAY and WINSOR, JJ., CONCUR.)
C.J., and JAY and WINSOR, JJ., CONCUR.)
__________________
1The
contradictions were to such an extent that Santiago filed a motion to appoint
an alternate EMA. The JCC denied the motion and noted the EMA’s testimony was
“competent” and “responsive to questioning.”
contradictions were to such an extent that Santiago filed a motion to appoint
an alternate EMA. The JCC denied the motion and noted the EMA’s testimony was
“competent” and “responsive to questioning.”
2We have
considered and rejected the employer’s separate argument that Santiago was
medically noncompliant.
considered and rejected the employer’s separate argument that Santiago was
medically noncompliant.