Sunday, March 13, 2016

Not with a Bang, but with a Whimper

HB 613 was passed by the Florida Legislature this session, and last week the Governor signed it into law. There is a new reality to the Expert Medical Advisor. 

T.S. Elliott said "this is the way the world ends, not with a bang but a whimper.” This quote came to me unbidden and unexpected as I read the enrolled version of HB 613 (2016). The bill was signed by the Governor on March 10, 2016 and will be the law in Florida on October 1, 2016. It occurs to me that perhaps this is how the EMA ends in Florida. The concept has been flawed since inception, but these amendments may make the market favor the consensus independent medical examination (CIME) as an alternative.

The Expert Medical Advisor concept stumbled onto the Florida Workers' Compensation scene in the 1990s, without much fanfare. It is fair to say that some Judges are not fans of the EMA process. The statute requires (the judge "shall . . . order") an EMA when there is a disagreement between two medical providers. Other states have implemented non-judicial processes for medical disputes, but the Florida EMA was an early example. 

This statute put a burden on the Division of Workers' Compensation. It had to compile and credential a list of medical care providers to perform the EMA function. Prior to the EMA statute, there was a similar provision in the Florida law that was referred to in the industry as the "super doc" provision. That section was never used as there was never a list of providers compiled to provide those services. 

The Division set about building the EMA list and physicians were recruited. For a time, the list grew, but it was never considered adequate in all specialties and all geographic areas. In recent years, the population of physicians on the list has dwindled. Last week, there were only 147 providers on the list, for the 67 Florida counties. This week, it is up to 150. The recent reimbursement changes may be having an effect. 



The statute requires appointment of an EMA, and the Court has been clear on its interpretation of that requirement. It concluded that when a provider was not available, the Judge could ask for appointment of a temporary EMA. The Division, by rule, made that process primarily the Judge's responsibility. The Judge had to find a medical provider, talk them into performing the service, obtain the necessary documentation, and submit it to the Division for their approval (which some perceived as perfunctory). 

There was no definition of what "available" meant. As a result, when a Judge was faced with a medical disagreement, and the only listed EMA provider in a particular specialty was 500 miles away, a Judge might conclude that no provider was "available," a decision of practicality. The Judge might then labor through the temporary certification process and provide the parties with the required EMA. 

At any point in that process, the parties could always stipulate to an EMA provider. The right of the parties in a workers' compensation case to stipulate has been repeatedly recognized by the Courts. Of course, if parties are willing to stipulate to an examiner, there is a more efficient and definitive process in the Consensus Independent Medical Exam, or CIME. It makes less sense to stipulate to an EMA, but that did and still does occur periodically.

HB 613, signed last week, changes that effective October 1, 2016. The following language (in italics) was added to the law. 

The injured employee and the employer or carrier may agree on the health care provider to serve as an expert medical advisor. If the parties do not agree, the judge of compensation claims shall select an expert medical advisor from the department's list of certified expert medical advisors. If a certified medical advisor within the relevant medical specialty is unavailable, the judge of compensation claims shall appoint any otherwise qualified health care provider to serve as an expert medical advisor without obtaining the department's certification.

So, the right to stipulate is now in the statute. As a side note, at some point someone may challenge other workers' compensation stipulations on the grounds that the statute, in other instances, does not say parties can stipulate. They may argue that the legislature has decided when parties can stipulate. That by adding this language to the EMA section, the legislature intended to specify when stipulations would be permissible. Their argument might be that the absence of legislative statement of a right to stipulate elsewhere means that the right does not exist elsewhere. 

The new EMA statute says "If the parties do not agree, the judge of compensation claims shall select an expert medical advisor from the department's list." Convenience or practicality is not a consideration. In fact, there will apparently be no consideration, as the legislature has apparently created a mandatory process. If a disagreement the judge "shall" appoint. And, if there is a provider on the list, the judge "shall select" from the list. If there is a disagreement in Pensacola, and the list contains a provider in Key West the fact that it is an 800 mile drive or at least 4 hour flight (unless you have to go through Atlanta or Charlotte or Dallas) apparently now lacks any relevance. The statute says the Judge "shall select" from the list. 

It is possible that the expense associated with EMA could increase. When I tweeted the signing of the bill, someone re-tweeted and said the distance does not matter, the carriers will just have to pay transportation and lodging. That is one perspective. But, imagine yourself with a back injury and riding hundreds of miles in a car for the EMA.

Some will argue that this outcome or interpretation is not patent. They may point to the legislature's other new language "if a certified medical advisor within the relevant medical specialty is unavailable . . .." (Emphasis added). Who decides what the "relevant medical specialty" is? Apparently, that would be up to the assigned judge. 

Some might argue that if two orthopedic surgeons have a disagreement, then the "relevant medical specialty" is "obviously" orthopedic surgery. But, if the disagreement is over the interpretation of an x-ray or MRI, might the "relevant" specialty be radiology? If the disagreement is over return to work, might the "relevant" specialty be physical medicine and rehabilitation? In short, will the "relevant medical specialty" be interpreted as controlling the determination?

And what is the analysis if the disagreement is among two specialties: an occupational medicine physician disagrees with an orthopedic surgeon, or a neurologist disagrees with a podiatrist, or a neurosurgeon disagrees with a chiropractor? When there are two distinct specialties represented in the disagreement, to whom would (should? must?) the Judge turn? Some will argue that this decision is wholly within the discretion of the Judge. 

Others will say that this new language changes nothing, and that this discretion existed all along. The first section of Fla. Stat. 440.13, paragraph (1), sub-paragraphs (a) through (s) provide a variety of definitions for medical care issues. But none of these define "relevant."  It appears that this determination may lie within the discretion of the assigned Judge. 

If the Judge decides that there is no provider on the list (anywhere in Florida) in the "relevant medical specialty," then the judge "shall appoint any otherwise qualified health care provider to serve as an" EMA. There is no longer any requirement for "obtaining the department's certification." What makes a provider "otherwise qualified" to be an EMA? Well, there is no provision in the statute. 

The requirement that the provider is "certified" has been specifically removed from the statute. For providers of EMA services to the Division, certification will still be required. Fla. Stat. 440.13(9)(a) will require that for Division EMAs someone will have considered "the qualifications, training, impartiality, and commitment of the health care provider to the provision of quality medical care at a reasonable cost." For those EMAs, the Division "shall" have established "the qualifications of expert medical advisors." Fla. Stat. 440.13(9)(b). To be a Division EMA, there will be standards, process, and consistency.

Certainly, the legislature knew of the certification requirements and what they provided in this instance, and consciously removed that requirement for OJCC EMAs. There are no certification requirements for OJCC EMAs. If the assigned Judge concludes there is no listed "advisor within the relevant medical specialty" then the Judge may appoint "any otherwise qualified health care provider." There is no definition or standard. What is "otherwise qualified" to one Judge may or may not be "otherwise qualified " to another. There are no standards, process or requirement of consistency. There is apparently no requirement that the Judge consider "the qualifications, training, impartiality, and commitment of the health care provider" for OJCC EMAs.

So, it appears that the new EMA statute presents a stark contrast in discretion for the Judge. Presented with a disagreement, the judge "shall" appoint an EMA (zero discretion). But with no definition, the Judge may have seemingly unlimited discretion in determining what is the "relevant medical specialty." After that decision, if there is physician on the division list in that specialty, the Judge may have no discretion, and "shall appoint" from the list, regardless of distance or expense or inconvenience (again, picture an injured worker with a serious back injury driving hundreds of miles to an EMA examination). 

If a chiropractic EMA is needed, there is only one listed in Florida, Chiropractor Wayne Wolfson, in Orlando. 



This would require a trip from Pensacola of 428 miles, Key West of 368 Miles, Miami of 229, Naples of 187 miles, and Jacksonville of 128 (according to the Florida official mileage calculator). 

If an Ophthalmology EMA is needed, there are only two in Florida, one in Palm Beach and one in Miami.



These would require a trip from Pensacola of 578-651 miles, Key West of 153-228 Miles, Naples of 107-150 miles, and Jacksonville of 267-342 (according to the Florida official mileage calculator).
If the issue is cardiovascular, as it may be in the first responder presumption cases, there are only five cardiovascular specialists in Florida. 


These are reasonably accessible in Orlando, Jacksonville, and southeast Florida (Aventura, Ft. Lauderdale, and Lake Worth). But the mileage would be significant from Florida's panhandle, Naples, Tampa, St. Petersburg, Gainesville and more. 

If the issue is about pain management, there are only three providers in the state. 


These are reasonably accessible for the region from the Space Coast (Melbourne) to Miami. However, they are perhaps a significant trip from Gainesville, Jacksonville, Naples, Orlando, Key West, and the Panhandle. 

So, the "shall select" statutory provision could result in significant cost, and perhaps uncomfortable travel, without any discretion afforded the Judge. But, if there is no such provider on the list, then the judge may have seemingly unlimited discretion to appoint any physician that the judge, without published standards or parameters, decides is "otherwise qualified" to perform the EMA. 

The EMA statute has presented a myriad of challenges over the years. The language added by HB 613 is intriguing. There will be questions to answer and arguments to be made/heard regarding how this new language changes Florida workers' compensation, or doesn't. Time will tell how this affects the adjudication process. Is this how the EMA ends in Florida?

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