Sunday, February 7, 2016

Will the Florida Legislature Change the EMA?

The Office of Judges of Compensation Claims has long suggested inefficiency and ineffectiveness in the mandatory operation of Fla. Stat. §440.13(9)(c). It is the foundational complication with the application and operation of the EMA process. This section provides that in the event of any dispute between health care providers, The Judge of Compensation Claims (JCC):

". . . 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." (Emphasis added). 

The EMA process creates delays in the adjudication of workers’ compensation cases. The Florida First District Court (hereafter “the court”) has concluded that appointment is mandatory even if the result is a continuance of the trial. AT&T Wireless v. Frazier, 871 So.2d 939 (Fla. 1st DCA 2004). 

The court has concluded that if there is no expert certified, then the Judge must request the department (then AHCA) to select a temporary EMA. Broward Children’s Center Inc. v. Hall, 859 So.2d 623 (Fla. 1st DCA 2003). Since the medical services unit moved from AHCA back the Division of Workers' Compensation, this has been changed by rule to require the judge to find, convince and select a provider, and the Division certifies. 

When there is a conflict in medical evidence, the JCC has no authority to examine or weigh the sufficiency of any of the conflicting opinions. Brown v. Vanguard Security, 7 So.3d 572 (Fla. 1st DCA 2009). If a Board Certified, world-renowned orthopedic surgeon opines that surgery is medically necessary, and a first-day-of-practice family practitioner, without the advantage of even viewing the diagnostic testing or performing an exam, opines that surgery is not necessary, the court’s interpretation of the statute is that the JCC shall not consider this factually, but “shall” appoint an EMA.

The disagreement need not be between doctors of the same speciality or experience. AA Gutter Cleaning and First Commercial Claims v. Nicholas Cesario, 49 So.3d 281 (Fla. 1st DCA 2010). The appropriate consideration regarding whether to appoint requires no analysis according to the court.

The court has interpreted the mandatory “shall” of this provision to require the appointment of an EMA, on the JCC’s own motion. So, if no party asks for or suggests the need for an EMA, the JCC is supposed to appoint one. Or, if either party "suggests" any conflict in medical opinions, then the JCC is supposed to appoint one. See Banuchi v. Department of Corrections, 122 So.3d 999 (Fla. 1st DCA 2013). This interesting interpretation renders Fla. Stat. §440.13(9)(f) meaningless in two regards. Statutory construction is generally supposed to give full meaning to the entire statute where possible.

The critical element of Fla. Stat. §440.13(9)(c) is the mandatory nature. The italicized “shall” in the section quoted above, removes any discretion of the JCC in whether to appoint. If a conflict is identified, the JCC “shall” appoint an EMA. The intent of this statutory provision is not clear. It is possible that some parties or legislators perceive(d) that JCCs cannot be trusted to resolve conflicts in medical opinions. If the provision were intended to provide JCCs with resource, for occasions in which she or he is in doubt, the provision would be permissive, using “may” order, empowering the JCC, rather than “shall.”

If there is a distrust of JCCs, as this mandatory provision suggests, it raises a pertinent question. If the JCC is not trusted to resolve these medical conflicts, why then is the JCC trusted to select the medical professional who will resolve these medical conflicts? The statute precludes the judge from resolving/deciding the conflict but allows the judge to pick the referee that will resolve it. 

As curiously, why is the JCC trusted to select the specialty to perform the EMA? In the example above involving a dispute between the opinions of a family medicine practitioner and a world-renowned surgeon, the law leaves the JCC discretion as to which EMA to appoint. Should the EMA be a family medicine physician or a surgeon? Orthopedic surgeon or neurosurgeon? On what foundation, in light of Brown, would this determination be made? 

This may be an even harder decision when the conflicting opinions are from one neurosurgeon and one orthopedic surgeon. What specialty should decide that dispute? And the desired effect of finality, with the presumption of correctness afforded the EMA, may be tempered by the parties ability to question and litigate over the selected specialty and who was in fact in the best position to render an opinion. 

There has been legislative discussion in 2016 of removing the requirement that EMA providers be "certified." Some suggest that this will alleviate system pressure and delay resulting from a small and diminishing list of certified EMA providers. The motivation of this amendment is not clear, but if it is passed, the JCC will be further empowered to select a provider of his or her choosing to resolve medical disputes. That is, empowered to select providers without regard to their Board Certification or other qualifications. 

The judge, who is apparently distrusted to make decisions resolving medical conflict, who is compelled (“shall”) to appoint an EMA, is empowered by HB 613 to appoint whomever she or he deems appropriate, regardless of credentials or certification. Hypothetically, a judge might select a practitioner with a significant malpractice history. Beyond searching for and cajoling participation from providers, will the judges now need to check databases to determine things like malpractice? 

There is a perception that the current list of Florida EMA providers is insufficient. There are complaints that recruiting providers for that list is difficult. Perhaps a solution to the lack of willing and qualified EMA providers is to remove the requirement of qualifications? But, perhaps a better solution would be to change the “shall” to "may" and leave the discretion to the judge to decide when it is or is not appropriate to appoint an EMA?

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