judge of compensation claims - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. /// Debunking the “Prescription Doctrine” in Florida Workers’ Compensation

Jeffrey P. Gale, P.A. — Sat, 07 Jun 2025 13:28:07 GMT

The belief that a physician’s written prescription must accompany every petition for benefits requesting medical care has taken on the status of religious doctrine in Florida workers’ compensation practice. This blog aims to challenge and clarify that misconception.

A petition for benefits is the workers’ compensation equivalent of a civil complaint. It is the legal vehicle used to initiate litigation against the employer and its insurance carrier (E/C).

Section 440.192, Florida Statutes, outlines the required contents of every petition, its purpose being to equip E/C with sufficient information to make informed decisions.

The so-called prescription doctrine finds its supposed legal foundation in Section 440.192(2)(i), which states:

“The type or nature of treatment, care, or attendance sought and the justification for such treatment. If the employee is under the care of a physician for an injury identified under paragraph (c), a copy of the physician’s request, authorization, or recommendation for treatment, care, or attendance must accompany the petition.”

Many practitioners and judges interpret this subsection as requiring a physician’s written request with every petition seeking medical care. They view the two sentences as linked and dependent. As a result, E/C routinely files motions to dismiss petitions that lack a doctor’s written request.

I respectfully disagree with this widely accepted interpretation.

In my view, each sentence of 440.192(2)(i) applies independently to different scenarios. They are not intertwined.

Florida Statutes Section 440.13(2) sets forth the E/C’s duty to provide necessary medical treatment. Authorized physicians routinely recommend services such as physical therapy, diagnostic studies, and specialist referrals. In such cases, the second sentence of 440.192(2)(i) applies—but only when the petition relies on a physician’s written request for that treatment. (Notably, this request may not be limited to authorized physicians.)

However, the statute does not state that a physician’s request must always accompany a claim for medical benefits.

The second sentence simply instructs that if there is a written request, include it. This makes sense—if a written recommendation exists, attaching it facilitates an informed response from the E/C. Nothing more.

Conversely, the first sentence of 440.192(2)(i) outlines what is required when the request for treatment does not stem from a physician’s prescription. In those cases, the claimant must state the “type or nature” of the requested care and provide a justification. The aim remains the same: to allow the E/C to assess the claim.

This interpretation finds support in Burdick v. Bob’s Space Racers, 659 So. 2d 351 (Fla. 1st DCA 1995). In Burdick, the claimant filed a petition seeking chiropractic treatment. The Judge of Compensation Claims (JCC) dismissed the petition, and the First District Court of Appeal affirmed the dismissal—not because it lacked a doctor’s request, but because it failed to meet the requirements of the first sentence of 440.192(2)(i). The second sentence was not even addressed, suggesting it was inapplicable to that claim.

In practice, a claimant may be unable to obtain a physician’s written request. This is especially true when the E/C authorizes treatment only for limited injuries, restricting providers from addressing other complaints. Some physicians, uncertain about their authority or unwilling to anger E/C, simply refrain from issuing prescriptions. In more extreme cases, the E/C refuses to authorize any treatment at all—making it impossible to obtain a prescription.

Such obstacles should not bar a claimant from seeking and securing medical care. The first sentence of 440.192(2)(i) exists precisely to address these circumstances.

Conclusion: The rigid insistence on a physician’s prescription with every petition for medical benefits misreads the statute. A more reasonable and legally supported interpretation recognizes the independence of the two sentences in 440.192(2)(i). This reading preserves both the claimant’s right to pursue care and the E/C’s ability to evaluate the request.

It’s time to retire the myth and restore clarity to the process.

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Contact us at 305-758-4900 or by email (kgale@jeffgalelaw.com and jgale@jeffgalelaw.com) 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. // Positive Course Correction in Florida Workers’ Compensation Law

Jeffrey P. Gale, P.A. — Wed, 05 Jun 2024 17:05:20 GMT

I have railed for years against various aspects of Florida’s workers’ compensation system. One of my main targets has been section 440.13(9)(c), Florida Statutes, covered under the section of the statute dealing with “Expert Medical Advisors.” What bothered me about the law is that it excluded workers’ compensation judges, known as judges of compensation claims (JCC), from being able to perform an important job function.

Before the 2023 Florida legislative session, when there was a “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 JCC was mandated by 440.13(9)(c) to order the injured employee to be evaluated by an expert medical advisor whose opinion was presumed to be correct unless clear and convincing evidence demonstrated otherwise. Rarely did a JCC rule against the presumption.

The EMA is never the injured employee’s treating doctor. In fact, the injured worker is only examined once by the EMA. The rest of the EMA’s knowledge comes mostly from other medical records. The presumption is given greater weight, for example, than that of the treating doctor who may have been providing care for years.

America’s judicial system is founded on the principle that the trier of fact, be it judge or jury, decide contested matters based on a fair and impartial consideration of the evidence, free of arbitrary pre-conditions. The EMA law is senseless and arbitrary.

Thankfully, the 2023 Florida Legislature agreed. JCCs are no longer mandated to involve EMAs in the decision-making process. One word makes the difference. Instead of JCCs being told they “shall” appoint an EMA, the new statute replaced the word with “may.”

Since the statutory change was made, few JCCs are appointing EMAs. To their credit, JCCs would rather make the tough medical decisions than have the decisions made for them. Rightly, judges should be allowed to weigh all of the evidence, including medical evidence. The new law lets them do it.

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Jeffrey P. Gale, P.A. // The Long Evolution of Attorney’s Fees in Florida Workers’ Compensation

Jeffrey P. Gale, P.A. — Fri, 26 Jan 2024 19:42:09 GMT

For as long as our law firm has been handling Florida workers’ compensation cases, the amount injured workers’ attorneys may receive as a fee has always been a hot topic. The two main factors driving the conversation are the injured workers’ share of a recovery, typically through a settlement, and limiting litigation. While the Florida Legislature pays lip service to the first factor, the second factor is the actual driving force.

Since 1998, when Republicans, with the election of Jeb Bush as governor, took full total control of the lawmaking process in Florida, the workers’ compensation laws have been tailored to make it difficult for lawyers representing injured workers (a/k/a “claimants”) to earn a sustainable income. The stated policy of the laws has been couched as promoting a greater share of recovered proceeds allocated to claimants instead of attorneys’ fees, but the silent truth is to make it difficult for claimants to hire lawyers willing and able to fight toe-to-toe against employers and their workers’ compensation insurance carriers. Bottom line: There is nothing Big Business hates more than pipsqueaks, i.e., injured workers, being able to challenge them on a level playing field. They want the field tilted in their favor.

The most famous example of this blatant abuse came to a head in Castellanos v. Next Door Company, 192 So.3d 431 (Fla. 2016). Marvin Castellanos was injured while working with Next Door Company. With the help of an attorney, Castellanos prevailed in his workers’ compensation claim, after the attorney successfully refuted numerous defenses raised by the employer and its insurance carrier. However, because the statute then in effect limited his ability to recover attorney’s fees to a sliding scale based on the amount of workers’ compensation benefits obtained, the fee awarded to Castellanos’ successful attorney amounted to only $1.53 per hour for 107.2 hours of work.

The Florida Supreme Court found the statute, which essentially became effective in 2003, unconstitutional. It understood that the statute was designed to make it difficult for injured workers to engage competent legal counsel. Citing Davis v. Keeto, Inc., 463 So. 2d 368 (Fla. 1st DCA 1985) (quoting Neylon v. Ford Motor Co., 99 A.2d 664, 665 (N.J. Super. Ct. App. Div. 1953)) the court noted that a claimant proceeding “without the aid of competent counsel” would be as “helpless as a turtle on its back.” At 371.

Workers’ compensation insurance carriers have not stopped whining about the Castellanos decision. Instead of being stuck with a $164.00 fee for more than 100 hours of work — footnote: the losing attorney in Castellanos, who represented the employer/carrier (E/C), was paid more than $16,000.00 — Castellano’s attorney was able to return to the trial court where he was awarded a reasonable fee upwards of $30,000.00.

The award was fair and good public policy. The right of a claimant to obtain a reasonable attorney’s fee when successful in securing benefits has been considered a critical feature of the workers’ compensation law since 1941. See Murray v. Mariner Health, 994 So. 2d 1051, 1057-58 (Fla. 2008). The stated goal of the workers’ compensation system remains to this date the “quick and efficient delivery of disability and medical benefits to an injured worker” so as “to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.” § 440.015, Fla. Stat. Allowing a claimant to “engage competent legal assistance” not only evens the playing field but it actually “discourages the carrier from unnecessarily resisting claims” and encourages attorneys to undertake representation in non-frivolous claims, “realizing that a reasonable fee will be paid for [their] labor.” Ohio Cas. Grp. v. Parrish, 350 So. 2d 466, 470 (Fla. 1977).

While the Florida Legislature has made numerous runs at overriding Castellanos, achieving the goal has proven more difficult than expected. The Castellanos decision, which was sensible and well-reasoned, continues to carry weight. More importantly, despite constant cries from Big Business that Castellanos will cause the sky to fall, workers’ compensation premium rates have pretty much fallen every year since. Be sure, though, if rates start creeping up, the wolves will be at the door howling that claimant’s attorneys’ fees are to blame. It doesn’t matter that the large fee awards result from poor claims handling. It’s easier to blame the lawyers.

2016 was a big year in workers’ compensation attorneys’ fee court decisions. While Castellanos involved so-called ‘carrier-paid’ attorney’s fees, Miles v. City of Edgewater Police Dept/Preferred Governmental Claims Solutions, 190 So. 3d 171 (Fla. 1^st DCA 2016) addressed contract rights between injured workers and their attorneys.

Until the Miles case, it was a crime in Florida for an attorney to accept a fee from a claimant in a workers’ compensation case that exceeded the fee formula contained in section 440.34(1), Florida Statutes. Section 440.105(3)(c), Florida Statutes. The crime was punishable by up to one year in prison (775.082) and a fine. Moreover, any lawyer violating 440.105(3)(c) could expect to be suspended or disbarred from the practice of law.

In Miles, the JCC rejected an attorney/client contract in which the client, an injured worker, and her union, agreed to pay a workers’ compensation lawyer a fee in excess of the amount allowed under 440.34. Because it would have been a financial hardship for the law firm hired by claimant to handle the case under the formula set forth in 440.34, it withdrew from the case. The injured worker proceeded Pro Se, where she lost before the JCC.

Claimant argued on appeal that Florida statutes 440.105 and 440.34 violated the First Amendment of the Constitution of the United States and the fundamental right to contract. The First District Court of Appeal agreed. At its heart, Miles is about freedom of speech and the right of individuals to contract freely for legal services. The Court found that 440.105 and 440.34 violated those rights:

In conclusion, the restrictions in sections 440.105 and 440.34, when applied to a claimant’s ability to retain counsel under a contract that calls for the payment of a reasonable fee by a claimant (or someone on his or her behalf), are unconstitutional violations of a claimant’s rights to free speech, free association, and petition — and are not permissible time, place, or manner restrictions on those rights. Likewise, those provisions also represent unconstitutional violations of a claimant’s right to form contracts — and are not permissible police power restrictions on those rights.

Miles at 184.

Before Miles changed the workers’ compensation Claimant-paid fee landscape, the statutory fee was considered the presumptively correct fee. Alderman v. Florida Plastering, 805 So.2d 1097 (Fla. 1^st DCA 2002). In Alderman, the JCC rejected a statutory fee because it resulted in an hourly rate of $847.00. The DCA reversed, reasoning as follows: “[I]t is possible that the award in a given case might be higher than the amount that would be obtained by applying an hourly rate. That is the essential feature of a contingent fee arrangement, and it is inherent in the design of the statute.” Id. at 1100.

To protect contingency fees, the Court established the following rule:

Although the judge of compensation claims may increase or reduce the presumptive fee by applying the statutory factors, an increase or reduction is appropriate only in exceptional circumstances [bold added]. Citations omitted. As we said in Marsh v. Benedetto, 566 So.2d 324, 326 (Fla. 1st DCA 1990), a departure is proper only if the presumptive amount produced by the statutory formula is “manifestly unfair,” Id. at 1100.

The “Alderman Rule” was followed in Smith v. Gulf Coast Hospital, 31 So.3d 297 (Florida 1^st DCA 2010). In Smith, the statutory fee resulted in an hourly rate of $643.00 per hour. Concluding that this hourly rate is “higher than is typically awarded in the district,” the JCC reduced the hourly rate to $200.00. Citing extensively from Alderman, the First DCA reversed and directed the JCC to award claimant’s attorney “a fee in the amount established by applying the fee schedule.”

The “Alderman Rule” was also followed recently in Michael D. Rudolph v. Darien Smith, The Home Depot U.S.A., Inc. and Liberty Mutual, January 24, 2024 (1^st DCA). In Rudolph, the JCC rejected a requested fee, concluding that “there is little there to justify a fee of about $4,000 an hour.” Citing Alderman, the First District reversed the lower court’s rejection, explaining that the JCC erred in departing downward by relying solely on the “customary hourly rate charged in the locality for similar work.”

By declaring the statutory fee unconstitutional, Miles established, of course, that the statutory fee is no longer presumptively correct. By allowing attorney-client contracts for fees in excess of the statutory fee, Miles established that the contract fee rate is the presumptively correct fee in workers’ compensation cases. (The Florida Bar has guidelines on determining the reasonableness of fees, so there are constraints besides just the attorney-client contract.) This conclusion is not changed by workers’ compensation judges being charged with approving attorney’s fees.

CONCLUSION: Workers’ compensation laws have always been a target of the Florida Legislature, sometimes for fair and reasonable reasons but mostly to maximize corporate profits at the expense of injured workers. Even though Castellanos and Miles have leveled the playing field, which has angered Corporate American, the legislative agenda during the past 4-5 years has been relatively tranquil compared to years past. This is attributable to stable and sometimes reduced premium rates, and the Legislature’s obsession, fueled by Florida Governor Ron DeSadist, with ugly and divisive culture wars. Nevertheless, targeting injured workers is never far from the minds of those same legislators.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. // Limited Medical Choices for Claimants in Florida Workers’ Compensation Cases

Jeffrey P. Gale, P.A. — Tue, 16 May 2023 18:05:33 GMT

Florida Statute 440.13 governs the provision of medical care under Florida’s workers’ compensation system. For the most part, the Employer and its insurance carrier — “E/C” — control the provision of medical care.

The most dominant aspect of this control is the right to select the injured worker’s treating doctors. Unfortunately, most of these doctors suffer from the incurable “Don’t Bite the Hand that Feeds You” disease. All too frequently, the opinions expressed by these doctors benefit the E/C to the detriment of the Claimant.

On rare occasions, E/C loses control of the medical. The most frequent situation is where the worker has suffered substantial injuries requiring emergency surgery in the hospital. The natural sequence is that the surgeon, especially if he or she maintains a private practice, will remain the primary physician after the patient is discharged from the hospital. While this doctor is not hand-picked by E/C, he or she is also not hand-picked by the Claimant.

440.13(2)(c) gives E/C a “reasonable time period” to provide initial medical treatment and care. If E/C fails to provide the initial treatment and care, Claimant “may obtain such initial treatment at the expense of the employer.” Even still, E/C can regain control of the medical under this provision. In Carmack v. Department of Agriculture, 31 So.3d 798 (Fla. 1st DCA 2009), Claimant suffered a compensable accident, but E/C refused to authorize medical care for psychiatric issues arising from leg and back injuries. Claimant sought care with a psychiatrist and filed a Petition for Benefits seeking authorization of past and future care with the psychiatrist. The Judge of Compensation Claims (JCC) ordered E/C to pay for treatment through the date of the final hearing (workers’ compensation trial), but not for continuing treatment with the particular doctor. Instead, E/C was able to choose another psychiatrist. The JCC’s ruling was upheld on appeal.

440.13(2)(f) may be the only true opportunity for the Claimant to select a doctor who will remain authorized in the future. Unfortunately, it takes a mistake by E/C for the opportunity to arise. The pertinent parts of this section read as follows:

Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident…. The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is compensable and medically necessary.

In Zekanovic v. American II, Corp., 208 So.3d 851 (Fla. 1st DCA 2017), E/C failed to respond within five days to Claimant’s request under 440.13(2)(f) for a one-time change of physician. Claimant then filed a petition for benefits requesting authorization of a particular doctor as his one-time change. The JCC found that Claimant was entitled to his one-time change, but because Claimant had not actually obtained treatment with the physician of his choice prior to the entry of his ruling, the JCC found that E/C retained the right to choose Claimant’s one-time change. Claimant appealed and the First District Court of Appeal reversed the JCC’s ruling.

We request a one-time change of physician in many of our workers’ compensation cases. Knowing the consequence of failing to respond timely — losing control! — E/C rarely fails to respond timely. When it responds timely, it gets to select the one-time change doctor. I can count on the fingers of one hand the number of times E/C has failed to respond timely. Coincidentally, one of those times happened just recently. Interestingly, because the oversight was by a friendly lawyer rather than the disagreeable adjuster in the case, I have offered to work with the lawyer to select an alternative both of us can agree on. However, because I won’t agree to one of the usual suspects, we may not reach an agreement. In the meantime, my client is scheduled to see the doctor we helped her select at the end of the month. Opposing counsel understands that if we can’t agree on another doctor by then, E/C will have to authorize our doctor.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

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. // 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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