Florida JCC May Not Ignore Clear Opinion of Expert Medical Advisor

Where an Expert Medical Advisor (EMA) clearly indicated in his report that a claimant had not reached MMI because of the claimant’s need for future surgery, it was error for the Florida Judge of Compensation Claims (JCC) to find that the claimant had indeed reached MMI on the basis of the EMA’s answer to one hypothetical question on cross-examination, held a state appellate court [Olvera v. Hernandez Constr. of SW Fla. Inc., 2019 Fla. App. LEXIS 17205 (Nov. 15, 2019)].

Black-Letter Rules” Re: Presumption of Correctness

The appellate court acknowledged that the “black-letter rules” affording the presumption of correctness to the opinion of an expert medical advisor (EMA) do not apply where the EMA fails to offer a definitive opinion on the contested issue, but the appellate court stressed that nothing in the EMA statute [§ 440.20(10), Fla. Stat.] or prior case law allows a JCC to disregard the presumed correctness of an unequivocal EMA opinion without first making a finding of clear and convincing evidence contradicting the presumed correctness. Here, the JCC appeared to weigh the evidence, including the testimony of the JCC. Without clear and convincing evidence that the EMA’s opinion was incorrect, it could not be weighed along with the other medical evidence offered.

EMA’s Report

Here, the EMA stated in his report that he recommended electrodiagnostic studies and additional surgery. Based on these recommendations, he also answered “no” to the question whether the claimant had, as of May 16, 2016, reached MMI. When deposed, the EMA confirmed the opinions expressed in his report. In fact, by this time, the electrodiagnostic studies had been completed and, according to the EMA, the results confirmed his opinion on surgery. However, when asked a leading question by the attorney for the employer and carrier, the EMA agreed that the claimant would be at MMI in May 2016 “if he does not have surgery.”

JCC’s Findings

Based on the answer to the hypothetical question, the JCC found that the claimant was not entitled to temporary partial disability benefits because the EMA opined that the claimant reached MMI as of May 31, 2016.

Fitzgerald Decision

As noted above, the appellate court acknowledged that in Fitzgerald v. Osceola Cty. Sch. Bd., 974 So. 2d 1161, (Fla. 1st DCA 2008), the court found that the presumption of correctness did not apply where the EMA had given only an equivocal opinion on the medical issue at hand. The court noted, however, that in a subsequent decision, Amos v. Gartner, 17 So. 3d 829, 832 (Fla. 1st DCA 2009), the court had explained that nothing in § 440.20(10), Fla. Stat., or in the Fitzgerald opinion allowed a JCC to disregard the presumed correctness of an unequivocal EMA opinion without first making a finding of clear and convincing evidence contradicting the presumed correctness.

The court concluded that because the employer/carrier never established the underlying facts supporting the hypothetical question, the EMA’s testimony on that point was nothing more than speculation. It could not form the basis for the JCC’s decision.