Presumption of Correctness Afforded Florida’s EMAs Passes Constitutional Muster

§ 440.13(9)(c), Fla. Stat., which provides a presumption of correctness to the opinion of an expert medical advisor (“EMA”), is not violative of separation of powers, equal protection, and due process guarantees of the Florida and federal constitutions, held the state’s First District Court of Appeal yesterday, in Abreu v. Riverland Elementary School/Broward County School Board, No. 1D17-2755, 2019 Fla. App. LEXIS 9379 (Fla. 1st DCA, June 18, 2019).

Background

In 2015, the claimant injured her shoulder in a work-related accident. The employer accepted compensability of the accident and injury and authorized treatment with Drs. Weinberg, Meli, and Ross. Dr. Weinberg performed an arthroscopic shoulder surgery to address a partial rotator cuff tear. Soon afterward, the claimant’s condition worsened, and she requested and received an alternate orthopedic physician, Dr. Meli. In February 2016, Dr. Meli placed the Claimant at maximum medical improvement (“MMI”) and assigned a zero percent permanent impairment rating.

The claimant continued to report shoulder pain. She discontinued care with Dr. Meli and sought care with Dr. Fletcher, an unauthorized orthopedic physician. Dr. Fletcher recommended additional surgery. The employer authorized another orthopedist, who did not recommend further surgery. This doctor placed the claimant at MMI on August 6, 2016.

The claimant filed a petition for benefits seeking authorization for surgery, as recommended by Dr. Fletcher. Dr. Fletcher’s opinions were not admissible because he was not an authorized treating physician or independent medical examiner (“IME”). Accordingly, the Claimant obtained an IME with Dr. Aparicio, who thought surgery was appropriate.

Because of the conflict in medical opinions, the JCC appointed Dr. Rozencwaig as an EMA pursuant to § 440.13(9), Fla. Stat. Dr. Rozencwaig opined that the claimant did not suffer from a full thickness rotator cuff tear and that no further surgery was recommended or medically necessary.

JCC’s Decision

Following a hearing, the JCC denied the request for surgery based on the opinion of the EMA, finding that although the claimant’s IME testimony was persuasive, the JCC was not convinced, “without hesitancy, that the opinions of the EMA are not correct.” The claimant appealed, challenging, inter alia, the constitutionality of § 440.13(9).

Separation of Powers

The Claimant contended the presumption of correctness afforded an EMA was a “procedural rule” that violated the guarantee of separation of powers; specifically, the presumption infringed upon the supreme court’s authority to impose rules governing evidence and interfered with the executive branch’s ability to adjudicate workers’ compensation claims fairly.

The court disagreed with the claimant, noting that under the plain language of § 440.29(3), Fla. Stat., there existed no statutory or constitutional grant of rulemaking authority to the supreme court in workers’ compensation proceedings. Accordingly, the claimant’s argument that the EMA presumption was an unconstitutional infringement on the powers of the supreme court was rejected.

Nor did the EMA presumption violate separation of powers by interfering with the executive branch’s ability to adjudicate workers’ compensation claims fairly.

Procedural Due Process

The court said that the essence of claimant’s due process argument was that the presumption of correctness is too strong—that requiring a claimant to present clear and convincing evidence to overcome the presumption is an insurmountable task, especially in light of the restrictions on admissible testimony in workers’ compensation cases. The court disagreed, noting that the EMA presumption was rebuttable and that similar presumptions were permitted elsewhere in the law. Moreover, because the claimant had been able to present evidence in the form of her IME, no violation of due process occurred as she was afforded the opportunity to be heard and, thus, was not denied access to court. Here, the claimant made the strategic decision not to depose the EMA before the merits hearing, despite denial of her motion to strike the EMA opinion. That diminished her argument that § 440.13(9)(c) essentially foreclosed any reasonable means, such as a deposition of the EMA, by which an EMA opinion might be challenged.

Equal Protection

As to her equal protection argument, the court held that the claimant had failed to pinpoint a classification created by the presumption which ran afoul of equal protection.