ime - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. // Florida’s EMA Law Neuters the Independence of Workers’ Compensation Judges

Jeffrey P. Gale, P.A. — Sun, 20 Nov 2022 19:22:20 GMT

The resolution of disputes in Florida workers’ compensation cases often boils down to medical opinions. On this matter, the deck is stacked against injured workers (a/k/a “claimants”).

Section 440.13(2)(a), Florida Statutes lays out the obligations of employers and their insurance carriers, commonly referred to as “E/C,” to furnish medical care to injured workers. Unless an E/C fails to furnish care timely, it controls who is authorized to provide care at every stage of the case. 440.13(2)(a),(c)&(f). In other words, E/C get to pick claimants’ medical providers.

We typically see the same handful of medical providers selected by E/C in every case. The obvious reason why is because the providers make a steady and reliable income from workers’ compensation cases and know better than to bite the hand that feeds them. Especially when a call can go either way, they are skilled at expressing opinions favorable to E/C. They’re also adept at managing care so they make money, for example, with ongoing visits and physical therapy, while depriving claimants of the opportunity to recover lost wage payments. In this regard, “No functional limitations” is a favorite conclusion. See Section 21 of DWC-25. (This form is supposed to be completed by authorized doctors after every appointment.)

Making matters worse is that judges of workers’ compensation claims (“JCC) are not allowed to consider the opinions of any medical providers other than those authorized by E/C, typically the hand-selected usual suspects, each party’s IME, and an EMA doctor. Section 440.13(5)(e) provides as follows:

No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.

An IME doctor is not a treater. He or she gets to examine the claimant one time and review medical records. See 440.13(1)(h)&(i) and (5). The EMA doctor is appointed by the Judge of Compensation Claims (JCC) to resolve differences of opinion among authorized and IME doctors. Section 440.13(9), Florida Statutes.

Because the EMA’s opinion is, by law, considered presumptively correct, section 440.13(9)(c), the EMA is sometimes referred to as a “Superdoc.” However, there is nothing superior about EMA “Superdocs.” Generally speaking, their training and experience are no greater than that of any other doctor. In fact, many EMA doctors belong to the group of usual suspects hand-selected by E/C to treat claimants. The moniker comes merely from the artificial preference given to their opinions.

Thankfully, the Superdoc’s opinion is not absolute. However, heaven and earth must be moved to overcome the presumption. The legal hurdle that must be overcome is set forth in 440.13(9)(c):

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. (Bold added for emphasis.)

Before Superdoc days, JCCs were free to weigh medical evidence without the burden of artificial presumptions making the decision for them. In other words, judges were allowed to judge. From demeanor to knowledge and experience, they could consider every element of a medical provider’s testimony. The standard was “greater weight of the evidence” rather than the much greater burden of “clear and convincing.” Civil law trials, both bench (tried to a judge) and jury, are decided by the greater weight of the evidence.

The EMA system is a roll of the dice for both sides. However, considering that many of the doctors on the EMA list are also on E/C’s list of treaters, it is arguable that the dice are weighted in favor of the E/C. I, for one, would rather take my chances before a JCC allowed to consider the evidence without artificial constraints determining the outcome.

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Contact us at 305-758-4900 or by email to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. // Peer Review in Florida Workers’ Compensation

Jeffrey P. Gale, P.A. — Tue, 08 Nov 2022 16:21:25 GMT

The Oxford Dictionary defines peer review as “a judgment on a piece of scientific or other professional work by others working in the same area.” It is a commonly used procedure with a variety of scientific and medical matters.

Florida’s workers’ compensation statutes are located in Chapter 440. Peer review is referenced at section 440.13(1)(o) as follows:

“Peer review” means an evaluation by two or more physicians licensed under the same authority and with the same or similar specialty as the physician under review, of the appropriateness, quality, and cost of health care and health services provided to a patient, based on medically accepted standards.

There is little other jurisprudential instruction to explain the pertinence of peer review in workers’ compensation cases.

Last week I received a “Peer Review” report from a doctor hired by the workers’ compensation insurance company in one of our cases. In the doctor’s opinion, a shoulder surgery recommended by our client’s authorized doctor “does not meet established treatment standards of medical necessity.” The peer review report was generated in response to a Petition for Benefits we had filed seeking authorization of the surgery. A few days later the workers’ compensation carrier filed a formal response to the Petition for Benefits in which it agreed to authorize the surgery. This is not the first time I’ve experienced a similar about-face involving peer review.

I don’t know why the carrier went to the trouble and expense of this so-called peer review. First, the statute requires the review to be done by “two or more physicians.” This review was done by one physician. Next, while 440.13(r) and (s) express an interest in “Utilization control” and “Utilization review,” neither the statute nor case law instruct how or even whether peer review functions to address utilization concerns or disputed medical benefits.

Peer review does not appear to fit into the scheme devised for resolving workers’ compensation disputes. Using our shoulder surgery case as an example, the carrier did not need a peer review opinion in order to contest the medical necessity of the procedure. Moreover, even an opinion complying with the statute — i.e., given by “two or more physicians” — would probably not be admissible in a court proceeding concerning whether the procedure will be authorized. For one thing, peer review opinions, which are employed as a tool in many different types of matters, are privileged and barred from use in legal proceedings. See Holly v. Auld, 450 So.2d 217 (Fla. 1984); South Broward Hospital District v. Feldbaum, 321 So.3d 828 (Fla. 4th DCA 2021); Lingle v. Dion, 776 So.2d 1073 (Fla. 4th DCA 2001); and Florida Statutes 766.101 and 395.0193. Second, section 440.13(5)(e) limits whose medical opinions may be considered by the judge of compensation claims (JCC):

No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.

Peer review does not qualify as one of these experts.

While 440.13(5)(e) would seemingly prohibit the actual peer review opinion from coming into evidence, Florida’s Evidence Code might allow the import of the opinion to get before the JCC. Florida statute 90.704 provides as follows:

Basis of opinion testimony by experts.—The facts or data upon which an expert bases an opinion or inference may be those perceived by, or made known to, the expert at or before the trial. If the facts or data are of a type reasonably relied upon by experts in the subject to support the opinion expressed, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible may not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Under 90.704, the party wishing to make the peer review opinion known, if only by inference, will furnish the report to one or more of the experts authorized to testify under 440.13(5)(e). The expert will then be asked to name the things he or she relied on as the basis for the opinions. If the expert references the peer review opinion, the JCC will naturally infer that the peer review opinion resembles the testifying expert’s opinion. That could be a harmful inference.

The opponent of this procedure should object on the following grounds:

The peer review report is privileged and barred from use in all legal proceedings.
Referencing the peer review in this manner is a backdoor attempt, in violation of 440.13(5)(e), at putting the opinion before the court.
The peer review evidence is cumulative.

Since the JCC might rule that the testifying expert’s reliance on the peer review report was improper, it is important during cross-examination of that expert or the court-appointed EMA to establish how much reliance there was on the opinion. If there was meaningful reliance and the JCC later finds that using the peer review opinion was improper, the expert’s opinion has been significantly undercut. When it involves an EMA, this might be enough to overcome the presumption of correctness. See 440.13(9)(c)(“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.”)

Another argument to make is that the peer review expert is really the party’s IME under 440.13(5)(e), and, therefore, no other IME for that party is allowed. In pertinent part, 440.13(5)(a), provides as follows:

The employer and employee shall be entitled to only one independent medical examination per accident and not one independent medical examination per medical specialty.

Locking the carrier into the peer review as its IME is a sound approach if the peer review is relatively weak and most likely less damaging than a dedicated IME opinion.

For the carrier to obtain an alternative IME, it must demonstrate at least one of these elements:

The examiner is not qualified to render an opinion upon an aspect of the employee’s illness or injury which is material to the claim or petition for benefits;
The examiner ceases to practice in the specialty relevant to the employee’s condition;
The examiner is unavailable due to injury, death, or relocation outside a reasonably accessible geographic area; or
The parties agree to an alternate examiner.

Section 440.13(5)(b), Florida Statutes While it is typically the workers’ compensation carriers who inject peer review into a case, nothing in Chapter 440 bars claimants from using the mechanism for what it’s worth.

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Contact us at 305-758-4900 or by email to learn your legal rights.