The First DCA entered an opinion on October 16, 2013 that will likely result in appointment of Expert Medical Advisors (EMAs) in many more claims. Banuchi v. Dep’t. of Corrections, (Fla. 1st DCA, Oct. 16, 2013).
Prior to Final Hearing, the claimant filed her “Notice of Conflict” wherein she pointed out a conflict in the medical opinions and suggested that the JCC appoint an EMA. The JCC construed this Notice as the claimant’s motion for appointment of an EMA. By ruling that the claimant requested an EMA, the JCC held that the claimant was responsible for payment of the EMA. The claimant filed a Motion for Rehearing in order to argue that she did not ask for appointment of an EMA, but simply made an effort to invoke the court’s jurisdiction to appoint an EMA because of the conflicting medical opinions. The JCC denied this motion and the case proceeded to a Final Hearing without an EMA having been appointed. The claims for benefits were denied, and this appeal followed.
The First DCA held that the claimant’s Notice of Conflict was not tantamount to a motion for appointment of an EMA. The Court held that the claimant was merely assisting the JCC by pointing out that a conflict in the medical evidence was obvious and apparent. The Court held that a JCC could not possibly know about all conflicts in medical opinions in advance of Final Hearing, and that the claimant did little more than put the JCC on notice of, “his mandatory obligation to appoint an EMA under section 440.13(9)(c).”
The harm foisted upon employer/carriers due to this opinion is the Court’s directive that in such a circumstance, the employer/carrier is responsible for payment of the EMA. The Court held that section 440.13(9)(f), “provides that in such an instance, where the JCC directs that the evaluation take place, it is the obligation of the carrier to compensate the EMA.” (Emphasis added). This ruling will increase medical and litigation costs by several thousand dollars in many more cases.
Injured workers have generally been reluctant to ask for appointment of an EMA because the party who requests an EMA is responsible for payment of the EMA. This ruling relieves injured workers of that obligation in its entirety. The distinction between a request for an EMA and a “Notice of Conflict” is a distinction without a difference. If an injured worker is not interested in an EMA, he will certainly not file a Notice of Conflict. By filing a Notice of Conflict, however, the claimant is essentially asking the JCC to appoint an EMA, the costs of which will be borne entirely by the employer/carrier.
This entire analysis begs the question of conflict in medical opinions. It is very unusual that a case proceeds to Final Hearing without a conflict in the medical evidence. Parties seek resolution of their dispute because of conflicts in the medical evidence. Injured workers ought to be wary, however, with a knee-jerk filing of a Notice of Conflict. The EMA opinion is deemed presumptively correct, and the JCC can reject an EMA opinion only with very clear, specific, persuasive reasons. An EMA opinion may very well be favorable to the employer/carrier. This opinion will cause all litigants to become much more familiar with the list of EMA physicians.