Originally posted, here.

1st DCA Clarifies Scope of EMA’s Presumption of Correctness
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by Sherri Okamoto (Legal Editor) State: FloridaTopic: Top In a case of first impression, the Florida 1st District Court of Appeal last week ruled that an opinion of an expert medical adviser that exceeds the scope of the perceived disagreement is admissible – but it is not going to be presumptively correct.

 

The Florida 1st District Court of Appeals, seen here in a photo by Wikipedia user Jhw57, is in Tallahassee, Florida.

The Florida 1st District Court of Appeal, seen here in a photo by Wikipedia user Jhw57, is in Tallahassee, Florida.

Florida Statues Section 440.13(9)(c) requires that an EMA’s opinion on a medical issue be treated as correct unless there is clear and convincing evidence to the contrary.

On Friday, the 1st DCA said the scope of this presumption of correctness is limited to the issues that the EMA was asked to address in order to resolve a disagreement between two other medical experts.

Any other opinion an EMA expresses remains relevant, the court said; however, it can only carry the same persuasive weight as that of an independent medical examiner or an authorized treating physician.

The issue popped up in the course of litigation for Sandra Beekman’s comp claim against Lowe’s Home Improvement.

Beekman had injured her shoulder while working for Lowe’s in July 2013. Lowes accepted the injury as compensable, but it disputed her doctor’s opinion that she needed shoulder surgery. Judge of Compensation Claims Stephen L. Rosen appointed Dr. Gilberto Vega-Tosado to determine whether Beekman needed surgery and whether her on-the-job injury was the major contributing cause of her need for surgery.

Dr. Vega concluded that the surgery was necessary and the work injury was a major contributing cause.

The parties deposed Dr. Vega. During the deposition, he said he believed Beekman’s shoulder problems were the result of an aggravation of a pre-existing condition. Lowes then asked him to apportion causation for Beekman’s need for surgery, and he said he believed the on-the-job accident created 51% of the need for surgery.

Beekman’s trial attorneys then filed a motion to prohibit Lowe’s from introducing Dr. Vega’s opinions on apportionment at trial.

Rosen granted the motion, finding Dr. Vega’s apportionment opinion was inadmissible because neither party had requested that a question be posed to the EMA addressing apportionment, and Dr. Vega’s report had made no mention of apportionment.

Lowe’s appealed.

The 1st DCA acknowledged that it had never before addressed “how broad is the brush of the presumption of correctness” for an EMA’s opinion.

“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,” the court reasoned, and the EMA’s opinion on these issues is expressly afforded a presumption of correctness.

The question then becomes “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,” the court said.

As the Evidence Code “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,” the court posited.

Turning then to the question of whether the EMA’s opinion on an issue exceeds the scope of matters he was asked to decide, the court said the EMA’s opinion ought to be “deemed a part of the overall picture from which the JCC could draw conclusions.”

The court ordered the matter remanded to Judge Rosen for further proceedings.

Defense attorney H. George Kagan, a partner with Miller Kagan Rodriguez & Silver, on Monday reflected that the EMA process was intended “stop trials and stop litigation” over medical issues. However, he said, it seems EMAs have “become just another speed bump on the way to resolution” for many cases.

Kagan said he thought the 1st DCA has indicated that it’s interested in changing the status quo, though.

He said he viewed the 1st DCA’s December ruling in Certistaff v. Owen as an indication the court was “going to look a little more closely” whenever a JCC decides not to follow an EMA’s opinion.

In the Certistaff case, the 1st DCA said a JCC’s rejection of an EMA decision will be viewed as legal finding, not a purely factual one, which subjects it to de novo review. The 1st DCA therefore can reverse a JCC’s ruling in more instances than it would under a more deferential standard of review.

With Beekman coming out so soon after Certistaff, Kagan said he thought there may be a policy shift with the 1st DCA when it comes to carrying out the intent of the EMA process.

But claimants’ attorneys say they the process is severely flawed.

Mike Winer, a past president of Florida Workers’ Advocates and current chair of the Florida Bar Workers’ Compensation Section, said he personally considers the EMA process as “an imperfect a system as there ever was.”

He said the process “adds inordinate cost and delay” to the comp system, for starters. “Every time an EMA gets appointed, usually it’s the carrier that has to pay for it, and the charge is up to $2,400,” Winer said. “So each case has a substantial likelihood of costing $2,400 more, because of this.”

Plus, it takes about two months to get an EMA report, and the trial process can be pushed back another month or two if the EMA needs to be deposed, Winer said.

In his experience, Winder added, the EMA is “often the least-qualified” out of all the doctors who give opinions in a comp case, and yet, “it’s accorded the greatest amount of weight.”

He said many of the doctors on the EMA provider list are also “career workers’ compensation insurance company doctors” who are “predisposed to give the most negative opinion possible.”

But the biggest problem, he said, is the mandatory nature of the process.

“The nature of workers’ compensation is that there is a conflict in every case,” Winer said, but “the judge is duty-bound to appoint an EMA” any time the conflict is over a medical issue.

Winer said that “usurps power from the judges,” as it takes away the ability of the judge to weigh the medical evidence and issue a decision.

“It really represents a legislative mistrust of JCCS, and there’s really no reason for that,” Winer contended.

Fellow claimants’ attorney Mark Zientz agreed.

“If you believe judges are reasonable people,” he said, “you wouldn’t need an EMA process” because “judges would know who to believe and know who is full of it,” and “they could decide cases based on the evidence in front of them.”

Zientz also said he thought “it doesn’t make any sense” for an EMA to be given a presumption of correctness when the independent medical evaluator or treating doctor is also qualified as an EMA.

He further pointed out that EMAs exist in a comp setting, and there is no such thing for personal injury cases, where it’s up to a jury to decide all the medical issues. Zientz said he saw no reason why it should be any different in a comp setting “where there is a qualified, experienced person who can make the decision,” who is more “sophisticated” than the average juror.

David Langham, the deputy chief judge of the Florida Office of Judges of Workers’ Compensation Claims, said he also had some concerns with the EMA system, as there are only 147 providers who are EMAs in a state of some 19 million people.

Langham said that most of the EMAs are located in the central and southeast portions of the state, which is problematic, as Florida is “a big state with a lot of space between people.”

He said he’s had to send a worker from Pensacola more than 670 miles to Miami to see the one EMA for an industrial hearing loss claim before.

Langham also noted that there are many medical specialties which are not represented on the current EMA provider roster. There’s not one pulminologist, endocrinologist, or dentist, he said. There’s also only one plastic surgeon, one geriatric medicine specialist, and six pain management physicians.

He said lawmakers are currently debating some modifications to Florida law to eliminate the requirement that doctors be certified to become EMAs. While Langham said this would make it easier for JCCs to appoint an EMA, he said he thought the judges will need guidance on how they’re supposed to make the choice if the certification requirement is eliminated.

Attorneys Kevin S. Murphy and Thomas A. Moore of Quintairos, Prieto, Wood & Boyer represented Lowe’s on the appeal, while Kimberly A. Hill represented Beekman. They could not be reached for comment on Monday.