In Florida, an Expert Medical Advisor (or “EMA”) is asked by a workers’ compensation judge to resolve certain controversies. A judge must order an EMA if either party requests one. They also must be called when there is a disagreement between two independent medical examiners.
A judge may also choose to call an EMA when doctors disagree about the medical evidence in the case, when doctors disagree about whether further treatment is necessary and when doctors disagree about an employee’s ability to come back to work. The EMA’s opinion is given a legal presumption of correctness. This presumption can be rebutted only by clear and convincing evidence to the contrary of the EMA’s opinion.
In a recent workers’ compensation case, the employer argued that a workers’ compensation judge did not give the EMA’s opinion a presumption of correctness when it awarded a workers’ compensation claimant permanent total disability. In the case, the judge had appointed the EMA to resolve a conflict in medical opinions about the claimant’s restrictions for work.
The EMA’s report stated the claimant was capable of light work with specific functional restrictions. At a deposition, the EMA said he would defer to a pain management specialist on the issue of the claimant’s pain management status. However, he was not asked in the same examination if he was retracting his opinion about the work restrictions.
On cross-examination, the EMA’s report was attached to the deposition. He was asked whether his opinions in the report had changed since the deposition and he said no. Therefore, a legal presumption of correctness attached to his opinions in the report.
The judge in this case made no finding that there was clear and convincing contrary evidence in determining that the claimant deserved permanent disability benefits. Rather, he looked to prior case law to determine he could not work in light of all the medical evidence on his case.
The claimant’s employer appealed. The appellate court found the judge relied on the case incorrectly. Unlike the other case, the medical advisor here had given a detailed opinion on the question of physical work restrictions. The appellate court explained that his statement at deposition that he would defer to the pain management person on “status” was not substantial evidence of a change in opinion.
The judge had improperly relied on the opinion of the claimant’s vocational specialist and rejected the presumption of correctness he should have given to the medical advisor. Accordingly, he reached the wrong conclusion: that the claimant was incapacitated from working.
There was not enough evidence to find permanent total disability based on the three methods of proving the claimant deserved it. The judge had found that the claimant met the conditions of the third method: he had permanent restrictions that were no totally disabling, but prevented him from engaging in sedentary employment.
In this finding, the judge privileged the testimony of the claimant’s vocational expert over the employer’s. The claimant’s expert had assumed that the medical advisor adopted the current pain management physician’s opinion and thus the expert’s opinion failed to consider his actual report when she gave the opinion that he could not do sedentary work because of both vocational factors and physical restrictions.
The court also noted that it was improper for the vocational experts on both sides to consider personal observations of the claimant’s pain limitations as a vocational factor. Physical limitation is only to be addressed by a medical expert under Florida law. The appellate court reversed and sent the case back to the judge for further proceedings.
If you are seriously injured on the job or elsewhere, contact the experienced personal injury and workers’ compensation attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.
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