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Oct 4, 2021

Florida JCC Errs in Failing to Appoint EMA to Resolve Medical Dispute

Where a Florida workers’ compensation claimant disagreed with the medical opinion of the employer/carrier’s authorized physician, sought a one-time change in physicians pursuant to § 440.13(2)(f), Fla. Stat., saw a new physician on his own when the E/C did not timely respond to the request for one-time change—that new physician offering an opinion in conflict with the first—the Judge of Compensation Claims was required to appoint an EMA to help resolve the conflict [ABM Indus. v. Valencia, 2021 Fla. App. LEXIS 13480 (1st DCA Sept. 29, 2021). The JCC’s determination that the second physician was not “authorized” under the statute until the JCC’s final ruling, and that accordingly, there was no dispute requiring or authorizing an EMA at any time before or during the final hearing, was erroneous, found a Florida appellate court.

Background

Claimant sought medical and indemnity benefits following a compensable workplace accident. The E/C authorized Dr. Rosabal to treat her. Dr. Rosabal did not think surgery was necessary, and released Claimant back to work. Claimant sent the adjuster a request for a one-time change of physician under § 440.13(2)(f), Fla. Stat., identifying Dr. Lazzarin as her choice of doctor.

The E/C’s adjuster first received the request on October 11, 2019, but did not respond to it until October 24, naming a third doctor as the one-time change physician. The E/C argued that its action was timely because Claimant’s request for a one-time change was improperly faxed directly to the adjuster and not to counsel, despite the E/C’s counsel’s having directed that all communications be sent to counsel. Claimant saw Dr. Lazzarin before the E/C responded to the one-time-change request. Dr. Lazzarin recommended surgery and physical therapy.

Under these circumstances, the E/C’s first argument was that Dr. Lazzarin was not authorized because the E/C timely provided a different doctor in response to Claimant’s one-time-change request. Alternatively, the E/C argued that if Dr. Lazzarin was deemed authorized—i.e., if the E/C’s response to the one-time-change request was late—then there existed a conflict in the opinions of Drs. Rosabal and Lazzarin requiring appointment of an Expert Medical Advisor to resolve the conflict.

JCC’s Decision

The JCC rejected the E/C’s argument about the one-time change, finding in the original final judgment that the E/C’s response was late and therefore Claimant was entitled to her designated doctor, Dr. Lazzarin. The JCC awarded Claimant medical and indemnity benefits, but did not address the EMA request in the original judgment. On the E/C’s motion for rehearing, the JCC rendered an amended judgment nunc pro tunc to the original judgment. In this amendment, the JCC reasoned that Dr. Lazzarin was not adjudicated to be authorized until entry of the final judgment, and therefore there was no dispute requiring or authorizing an EMA at any time before or during the final hearing.

Appellate Court Disagrees with JCC

The appellate court indicated the JCC’s reasoning was “flawed, as a matter of both logic and law” [Opinion, p. 4]. The court continued:

Logically, the JCC’s labor was incomplete until she addressed the E/C’s well-preserved, contingent argument that if Claimant’s choice of Dr. Lazzarin was valid under the circumstances, then Dr. Lazzarin was authorized, his opinion conflicted with Dr. Rosabal’s, and an EMA was required. The instant the JCC determined that Dr. Lazzarin was authorized, that ruling retroactively characterized his role as that of an authorized physician, requiring the JCC to address the EMA request in light of the record conflict between the opinions of Drs. Rosabal and Lazzarin [Opinion, p. 4].

The court said that Dr. Lazzarin counted as an authorized provider, and because his opinions conflicted with Dr. Rosabal’s, the JCC was required to appoint an EMA to resolve the conflict. Accordingly, the court reversed that portion of the judgment awarding indemnity and medical benefits (other than the authorization of Dr. Lazzarin), and remanded for the appointment of an EMA and for further proceedings.