Tuesday, March 1, 2016

What Difference - At this Point - What Difference Does it Make . . . ?

There is discussion about whether statutory language codifying the right to enter stipulations would help the EMA statute, and its various conundrums. The Florida legislature appears intent on passing either HB 613 or SB 986. The Senate version is showing more progress and so is the likely vehicle for a variety of small changes to chapter 440 this season. Essentially, this amendment would add to the expert medical advisor statute a sentence that says parties can agree upon an EMA provider, and other changes will remove the requirement that OJCC EMA providers be certified. Some history of the EMA and some decisions about it are here

Stating in the statute that parties may stipulate to an EMA provider really ads nothing to the process. First of all, the courts have already said that parties can stipulate as they wish in workers' compensation and for the most part the judicial process should honor and enforce those stipulations. Additionally though, we already have a specific stipulation section regarding consensus independent medical examiners (CIME). 

I have raised the CIME issue on occasion, and I am surprised when attorneys do not know to what I am referring. The "consensus IME" has been in the law for years. It is rarely used. I have seen it used only once, but that does not mean it has not seen more extensive action in cases that later resolved rather than being tried. 

So, when there is a disagreement in the medical opinions, a party could move for an expert medical advisor under Fla. Stat. §440.13(9)(c). Or, the parties could agree to use the “consensus” vehicle in Fla. Stat. §440.13(5)(g), the “consensus independent medical examination,” or “CIME.” The statute says:

“(g) When a medical dispute arises, the parties may mutually agree to refer the employee to a licensed physician specializing in the diagnosis and treatment of the medical condition at issue for an independent medical examination and report. Such medical examination shall be referred to as a “consensus independent medical examination.” The findings and conclusions of such mutually agreed upon consensus independent medical examination shall be binding on the parties and shall constitute resolution of the medical dispute addressed in the independent consensus medical examination and in any proceeding. Agreement by the parties to a consensus independent medical examination shall not affect the employer’s, carrier’s, or employee’s entitlement to one independent medical examination per accident as provided for in this subsection.”

Thus, when the parties agree on a provider, there is no need for an EMA. The agreement renders the EMA provision moot. The effect of an agreement regarding provider is a stipulation for a CIME. This effect and distinction is lost on those who propose to "fix" the EMA process by codifying the already existing right to stipulate in Fla. Stat. §440.13(9)(c). Under the CIME, the parties agree to the process, they choose the provider, and the result is even stronger (more conclusive) than the EMA result.

An EMA is merely “presumed to be correct” and either party can thereafter contest that result, attempting to prove otherwise by “clear and convincing” evidence. Certainly, that is a tough proposition. The EMA might be said to be very difficult to reject.

The CIME is not “presumed” correct, subject to further challenge and dispute and argument like the EMA. The CIME’s “findings and conclusions” are mandatory, “shall,” “binding,” and “shall constitute resolution of the medical dispute addressed.” The CIME ends the dispute; period. The CIME might be referred to as a conclusive presumption, one which cannot be challenged or overcome. Some might balk at that conclusive effect, but to reach that point each party has agreed/stipulated to the CIME process and effect. 

Procedurally, codifying the ability to stipulate to an IME is also redundant. The parties to workers’ compensation cases have a long-recognized authority to stipulate to absolutely anything they wish. They can stipulate “she can” or “he cannot,” that “she does” or “does not,” or “he is” or “is not,” etc. Insert whatever you wish in these, e.g. “she can return to work” or “he cannot lift over 20 pounds,” or “he is at maximum medical improvement.” So, even without the language added by either HB 613 or SB 986 parties today have every right to stipulate to an EMA provider. 

The proposal to amend Fla. Stat. 440.13 to allow parties to stipulate to an EMA provider adds little or nothing to the current state of the law. Does this stipulation language further the goal of making the EMA a meaningful process? I am doubtful. 

In the end, someone distrusts judges to make decisions between two competing medical opinions or conclusions. Those who distrust judges to make the decision, conversely and curiously, trust the judges to pick the physician who will make the decision. The removal of the certification language will make some people's jobs easier, but will only diminish the EMA process further. An illogical process, now without standards, but with a presumption of correctness.

The EMA list is small, and is contracting. As yet, I have seen no statutory proposal that will repair or augment the list. The provider list population will likely remain thin, and the judges will be left, as now, to do the leg-work of finding a “willing provider” on a virtual case-by-case basis. 

Will the changes to Fla. Stat. §440.13(9)(c), iterating the already available stipulation option and removing certification requirements, fix the EMA? What difference - at this point - what difference will it make?

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