Case Law Update – February 2016

Workers’ Compensation Defense Clients

Gary Steinberg v. City of Tallahassee, Fla 1st DCA Case No. 1D15-1794 (February 23, 2016)

In this case, the claimant appealed an order of JCC Laura Roesch which denied his claim for additional impairment benefits (IB’s) which was based upon the JCC’s acceptance of one doctor’s opinion over another doctor’s conflicting opinion as to the correct permanent impairment rating (PIR). The claimant had asked for the appointment of an EMA which was denied by the JCC on the basis that the Motion for EMA was untimely, and also, the JCC found that no disagreement existed because one of the doctor’s opinions had an insufficient foundation.

In March, 2013, the treating physician, Dr. Burkart placed the claimant at MMI and assigned a 50% PIR. However, one month later, Dr. Burkart changed his opinion to only a 20% PIR without explaining the reason for the change. The claimant’s IB payments stopped as a result of the reduction in the PIR and as a result, the claimant obtained a “records review” IME with Dr. Borzak. Notably, Dr. Borzak did not examine or see the claimant, nor did he speak with him. Dr. Borzak only reviewed medical records and based upon the “paper review” assigned a 42% PIR.

The E/C asserted that Dr. Borzak’s opinion was not sufficient to create a “disagreement” because it was based only on a records review. JCC Roesch agreed with the E/C that there was not an actual “disagreement” between doctors sufficient to require an EMA. However, the First DCA reversed the JCC’s opinion and held that Dr. Borzak’s opinion constitutes competent substantial evidence (CSE) because nothing in the definition of “independent medical examination” set forth in F.S. §440.13(1)(j) precludes a records review IME.

The second issue in this case was whether or not the claimant’s request for the EMA was timely. The Appellate Court noted that the EMA statute, §440.13(9)(c) does not set a deadline for EMA requests. The only deadline is found in the case law. The case law on this issue essentially holds that EMA requests should not be “unreasonably delayed” once the party is aware of the disagreement between doctors. However, the court noted that a request is not the only way to bring the need for an EMA to a JCC’s attention.

The court noted that the JCC has a mandatory statutory duty to appoint an EMA in proper circumstances. The court also noted that a party who requests an EMA must pay for it while in contrast, when a JCC on his own (sua sponte) appoints an EMA, the cost must be paid by the E/C pursuant to §440.13(9)(f). Accordingly, the claimant may give notice of the need for an EMA without actually requesting it by motion and therefore will not have to pay for the EMA if the JCC appoints one under those circumstances. In the Steinberg case, the claimant gave the JCC two “notices” that an EMA was appropriate and required under the circumstances before he finally filed a motion requesting an EMA.

The First DCA held that the claimant’s first notice to the JCC that an EMA was required was timely and therefore, cured any timeliness problem in this case despite the fact that the claimant’s actual Motion requesting an EMA was filed only five days before the Final Merits Hearing was scheduled to take place. In conclusion, the First DCA held that the claimant’s EMA request was timely and that the disagreement between the treating doctor and the “records review/paper review” doctor did constitute a disagreement which required an EMA. Therefore, the JCC erred by not appointing an EMA.

Practical Application:

This case has a couple of significant implications. First, it makes clear that a “records review” IME is sufficient and that the opinion of a doctor who merely reviews records and never actually examines the claimant does constitute competent substantial evidence (CSE) which the JCC can base a ruling upon. As a result, claimants who cannot afford to pay for a full/actual IME will still be able to obtain a presumably less expensive “records review” IME and that doctor’s opinion can be used effectively in court. (Of course, defense attorneys will still be able to argue that the opinion of a “records review” IME is “not as reliable” as the opinion of a doctor who actually examines the claimant.)

Second, the case reiterates prior case law which indicates a claimant does not necessarily have to request an EMA which would result in him having to pay for it. Rather, a claimant who wants an EMA can simply file a notice informing the JCC that an EMA is necessary which should result in the JCC appointing one in which case, unfortunately, the E/C will have to pay for the EMA.
Note: This very recent opinion just issued on February 23, 2016 is not yet final and subject to rehearing. However, it is a unanimous ruling and likely to become final in the near future.

Please feel free to contact any of our workers’ compensation attorneys listed below if you wish to discuss this case and its application to your claims. You may reach us at the telephone numbers or e- mail addresses listed below:

Fort Lauderdale/East Coast Office: (954) 462-4304

Walter C. Wyatt, Partner – ext. 218

Robert M. Potter, III, Partner – ext. 222

St. Petersburg/West Coast Office: (727) 322-1739

Joseph A. Bayliss, Partner – ext. 306