187 So. 3d 318
Fla. Dist. Ct. App.2016Background
- Claimant filed for authorization of right-shoulder surgery based on a July 17, 2013 workplace injury and asserted a medical conflict between treating physicians.
- The Judge of Compensation Claims (JCC) appointed an Expert Medical Advisor (EMA), Dr. Vega, and posed two questions: (1) is surgery medically necessary, and (2) if so, is the 7/17/2013 accident the major contributing cause.
- Parties later asserted, for the first time in pretrial stipulations, that the Employer/Carrier (E/C) would seek apportionment to a pre-existing condition if the JCC found in Claimant’s favor.
- At deposition, the EMA opined the claimant’s condition was an aggravation of a pre-existing condition and thus addressed apportionment, an issue not expressly posed by the JCC.
- The JCC excluded the EMA’s apportionment opinions because the JCC had not specifically asked the EMA about apportionment and the parties had not previously framed that disagreement for the EMA.
- The First District affirmed the JCC’s jurisdictional ruling but reversed the exclusion of the EMA’s apportionment opinions and remanded for proceedings assigning appropriate weight to those opinions and allowing reopening of medical evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the EMA’s opinions on apportionment (issues not specifically posed) were admissible and entitled to the statutory presumption of correctness | Beekman argued the EMA’s opinions relevant to causation and need for surgery were admissible and the JCC could consider them in assigning weight | E/C contended the JCC properly excluded EMA apportionment opinions because the EMA was not asked about apportionment and the presumption of correctness should not extend to opinions beyond the posed questions | The court held EMA opinions addressing issues beyond the specific disagreements posed are admissible but not presumptively correct; only opinions answering identified disagreements get the presumption of correctness. Court reversed exclusion and remanded for reconsideration and reopening of medical evidence. |
Key Cases Cited
- Escutia v. Greenleaf Prods., Inc., 886 So. 2d 1059 (Fla. 1st DCA 2004) (abuse of discretion review for evidentiary exclusions)
- Lombardi v. S. Wine & Spirits, 890 So. 2d 1128 (Fla. 1st DCA 2004) (standard of review for statutory interpretation is de novo)
- Russell v. Orange Cty. Pub. Sch. Transp., 36 So. 3d 743 (Fla. 1st DCA 2010) (when statute is ambiguous, examine legislative intent)
- Murray v. Mariner Health, 994 So. 2d 1051 (Fla. 2008) (statutory interpretation principles)
- Broward Children’s Ctr., Inc. v. Hall, 859 So. 2d 623 (Fla. 1st DCA 2003) (EMA created to assist JCC when experts conflict)
- Dawson v. Clerk of Circuit Court – Hillsborough County, 991 So. 2d 407 (Fla. 1st DCA 2008) (EMA testimony admissible beyond narrow treating scope)
- Fitzgerald v. Osceola Cty. Sch. Bd., 974 So. 2d 1161 (Fla. 1st DCA 2008) (EMA inconclusive on ultimate issue can still assist JCC in weighing evidence)