My Recent Experience With Florida’s Workers’ Compensation EMA (Expert Medical Advisor) Law (Statute 440.13(9))

greed.jpgWhile it’s bad enough that the employer/carrier (“E/C”) get to hand pick the injured worker’s treating doctors, Section 440.13(9)(c) Florida Statutes (2013) gives them a free shot at defeating opinions they oppose. My recent experience demonstrates the point.

In pertinent part, Section 440.13(9)(c) provides:

If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor. The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.

My client claimed to have hurt his back while trying to lift a roll of tarpaper from the floor of a van. Unbeknownst to him, the tarpaper had melted in the hot sun and stuck to adjacent rolls, causing unexpected resistance during the attempted lift. He felt the immediate onset of intense back pain.

Initially, E/C sent him to a workers’ compensation clinic. A lumbar spine MRI was ordered. The diagnostic test revealed a disc herniation at L5-S1 along with bony degenerative changes. The herniation caused the clinic doctor to prescribe a consultation with an orthopedist. The orthopedist, chosen, of course, by the E/C, opined that the incident was the major contributing cause (“MCC”) of the disc herniation. He also decided that his patient might benefit from surgery, so he sent him to an orthopedic surgeon, again chosen by the E/C. The surgeon, Jonathan Hyde, M.D., performed a comprehensive physical examination, took a thorough medical history, and personally reviewed the MRI images (as opposed to simply relying on the radiologist’s report). He, too, opined that the incident was the MCC of the disc herniation. He prescribed physical therapy and medicine, and later performed an epidural steroid injection. When none of the conservative approaches worked, he recommended surgery consisting of a “trans-facet decompressive laminectomy approach followed by a transforaminal lumbar interbody fusion.” A surgery date was scheduled for one month later.

Up to this point the E/C had been covering all of the medical care, including the epidural injection. However, it refused to authorize the expensive surgery. Its response was to challenge the treating doctors’ MCC opinions.

E/C went out and hired a well-known insurance company doctor to perform a so-called “IME.” This doctor had not done back surgery since 1979, had not written any articles or given any lectures on the subject of herniated discs or the type of surgery that had been recommended. His CV was only four pages long. In contrast, Dr. Hyde’s CV was some thirty pages long, with entry after entry of articles and lectures on the subjects at issue. He specialized in diagnosing and treating disc herniations. In short, E/C’s IME is a hired gun, Dr. Hyde is a top gun.

To make matters worse, the E/C waited two months to schedule the IME, which was then put on the books for a month later, meaning that the surgery date was blown. During this period, the Claimant’s pain became so intractable that he was admitted overnight to the hospital by Dr. Hyde for pain injections.

E/C provided its IME doctor with some of the medical records, but not the MRI images. His examination of the Claimant, which I attended and videotaped, lasted approximately 30 minutes. His “IME Report” came two weeks later. Not surprisingly, considering the unstated but clearly understood marching orders, the doctor opined that the industrial accident played no role whatsoever in causing the herniated disc.

On its face, the opinion contrasted materially with the surgeon’s. Left alone, I knew that E/C was sure to move for and receive an EMA. For reasons involving delay, uncertainty and simple reasonableness, I wanted to avoid an EMA. In my view, the board certified orthopedic surgeon’s opinion was correct and the Judge of Compensation Claims (“JCC”) should order the surgery. In the days before the EMA law went into effect, a JCC would choose from the testimony of treating and IME doctors. Under the facts of our case, 99.9% of the time the JCC would accept the board certified orthopedist’s opinion and order the surgery. However, this language, from 440.13(9)(c), puts, for all practical purposes, that option out of reach:

The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.

The E/C waited to file its motion for EMA until five days before the final hearing on the claim for authorization of the surgery, more than three months after it had received the IME report.

My arguments against the motion were: (1) the motion was untimely; and (2) the IME doctor did not have a sufficient basis, pursuant to Section 90.705 Florida Statutes, to render his MCC opinion.

The standard concerning the timeliness of requests for the appointment of an EMA is set forth in Palm Springs General Hosp. v. Cabrera, 698 So.2d 1352, 1354 (Fla. 1st DCA 1997):

While the statute contains no provisions governing the timeliness of requests for appointment of expert medical advisors, the absence of statutory deadlines does not authorize unreasonable delays in requests for evaluation by expert medical advisors once material disagreement in the opinions of health care providers comes to a party’s attention.

This standard was put to the test in Walsdorf Sheet Metal Works, Inc. v. Gonzalez, 719 So.2d 355 (Fla. 1st DCA 1998). On the issue of major contributing cause (“MCC”), the judge of compensation claims and the appeal court decided that a material disagreement in the opinions of health care providers became apparent when, on November 25, 1996, the testimony of one of the authorized doctors conflicted with the opinions contained in another doctor’s medical report dated October 29, 1996. E/C moved for an EMA on April 9, 1997, at the end of the final hearing. Instead of ruling on E/C’s motion, the JCC determined that the industrial accident was the major contributing cause of the injuries and disability suffered by the claimant. On appeal, the First DCA concluded “that there was no error because the employer/carrier’s request for appointment of an expert medical advisor was untimely.”

The material disagreement in our case became apparent when E/C received the IME report on November 11, 2013. The final hearing was scheduled for February 25, 2014. E/C filed its motion on February 18, more than three months after receiving the report. This conscious delay runs headlong into the following proposition laid down in the Palm Springs case:

The concern for timeliness the final order manifests is unquestionably legitimate. It is for the judge of compensation claims–not for the parties–to set hearings, to continue them, if need be, and generally to control the docket. To the extent section 440.13(9)(c), Florida Statutes (1995), permits a party to insist in effect on a continuance … it carries with it possibilities for unwarranted disruption and delay.

@ 1354.

The IME doctor was deposed. He acknowledged on cross-examination that his MCC opinion would have been more solid had he personally reviewed the MRI films, but he stuck to the party line anyway. No Perry Mason moment. (Perry Mason would always get the guilty witness to confess to the crime on the witness stand.) Further undermining the validity of the IME’s MCC opinion, was the surgeon’s testimony that MCC conclusions could not be given within reasonable medical certainty without personally reviewing the MRI films.

A hearing was held on E/C’s motion. In spite of making what I thought were correct and winning arguments, the JCC granted the E/C’s Motion for EMA and continued the trial until after the EMA’s opinions are in.

While the EMA law can be used by E/Cs and Claimants, it tends to favor E/Cs. Most EMA doctors are also the doctors regularly selected by E/Cs to treat injured workers (including physical therapy) and perform IMEs — in fact, the IME doctor in my case is an EMA doctor. He is also one of the doctors frequently selected by E/Cs to treat. These doctors make big money treating and performing IMEs. If they render an EMA opinion which is unfavorable to an E/C, they run the risk of having their flow of E/C business dry up. Sadly, the almighty dollar has a way of influencing decisions.

No other system in Florida appoints a “super-doc” to render an opinion. It is almost patently absurd, especially when some of the EMA doctors are not qualified, through training and experience, to render the opinions they’re charged to give. (Consider: the EMA in my case, albeit a surgeon, operates on shoulders and knees, not backs. Charging him with deciding whether a particular back surgery should be performed, is like asking a baseball outfielder to pass judgment on a pitching coach’s mechanical instructions to a pitcher. While the outfielder plays baseball, he does not have specialized pitching mechanics knowledge.) The better way to decide such contested issues, which is the procedure used in every other forum that decides contested medical issues, is for the trier of fact — judge or jury — to choose which of the various medical opinions carries the greater weight of the evidence.

ENTRY DATE — JUNE 13, 2014: This story has a happy ending. Two months after receiving the medical records and examining the patient, the EMA doctor agreed with Dr. Hyde that the claimant’s injury was work-related. The E/C quickly agreed to authorize the surgery, which was performed successfully yesterday.

While it took nearly one year to perform the surgery from the time it was prescribed, I suppose it can be said that all’s well that ends well….

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