The Striking of an EMA

In April 2019, the Florida First District Court of Appeal decided Falk v. Harris Corp., -- So. 3d --, 1D18-2176 (Fla 1st DCA 2019). The case is relevant as it perhaps answers a question that many have asked. 

Several years ago, I was presented with a Motion to Disqualify Expert Medical Advisor (EMA). There had been a motion to appoint EMA; the EMA was not appointed of the Judge's own motion. The injured worker had been evaluated and a report issued. The injured worker then moved to disqualify the provider making various allegations about the evaluation process. There was also a complaint filed by the worker against the doctor with licensing authorities as I recall. 

The injured worker thus sought the removal of that physician from the case and the appointment of a different EMA provider. The worker raised allegations and accusations based upon her perceptions of the physician, and asserted that she lacked both faith and trust in that provider. The employer/carrier insisted that this Office lacked jurisdiction or authority to appoint another EMA, and in that process to effectively disregard the opinions of the initially appointed EMA. 
The employer/carrier argued that the statute, section 440.13(9) requires that when a conflict is presented the appointment of an EMA is mandatory. Furthermore, it asserted that the report of an EMA shall be received in evidence. Section 440.25(4)(d). Furthermore, the opinions of the EMA are 
"presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims." section 440.13(9)(c). 
On this path of logic, the employer argued that once appointed the authority of a particular physician remained inviolate. 
The injured worker argued that the EMA was judicially appointed and essentially that physician became "judge like" upon appointment. This argument was based upon the presumptive correctness of the EMA physician opinion. The worker argued that the EMA effectively became the judge regarding medical issues. Therefore, the worker argued, the EMA could be disqualified pursuant to Rule of Judicial Administration just as a judge might be. See Rule 60Q-6.126. I rejected that argument, concluding that while the EMA opinion is presumptively correct, that does not render the physician judicial or even quasi-judicial. 
However, I concluded that the authority of a particular EMA in a particular case is the result of this Office making an appointment pursuant to the statute. In concluding that this Office necessarily remains engaged in the EMA process, I noted that after an appointment of an EMA there could be a variety of instances which might necessitate the appointment of an alternative EMA provider. 
As examples, I cited that following such an appointment, the EMA is required to complete a certification of "no conflict." That essentially requires that the physician assure all parties that she or he is not disqualified from participating in that particular case. If the medical issue involves some drug, device, or modality, it is possible that the physician could have prior involvements advocating or experimenting with such that could lead the physician to conclude she or he has a conflict of interest. 
Alternatively, it is possible that the physician might discover that she or he had been previously consulted in the case, unbeknownst to the parties. A treating physician might have called upon the EMA physician for advice. The insurance company or its attorney might have consulted with the EMA physician for advice. The physician is obligated to consider the implications of an appointment, and certify the absence of conflict of interest. If the doctor does not, then it is only logical that physician is not the EMA, despite the order appointing her or him. 
Similarly, it is possible that prior to trial the appointed EMA might fall ill or even pass. A foundational part of our litigation system is the Constitution's recognition of the right to due process. That right includes the ability in many instances to confront witnesses, the process of cross-examination. It is often through just that process that a party may seek to establish the very "clear and convincing" evidence that might convince the trial judge to disregard the EMA conclusions despite the statutory presumption of their correctness. 
If an EMA were to become incapacitated during the EMA process, prior to the parties' opportunity to take the provider's deposition and thus confront the conclusions, then it might be appropriate to appoint some other EMA provider. However, the right to cross-examination is not absolute and such a development might not necessarily require disqualification. That is an intriguing point. See IMR and Due Process
To conclude an EMA could not be dismissed, I found, might be to accept an absurd result: the appointment of the EMA is mandatory, but the incapacity of the EMA devolves the conflict back to the trial judge for medical determinations as there is no stated statutory authority for appointing a second (substitute) EMA. Or, if the incapacity is not permanent, the disability of the EMA provider and resulting unavailability for deposition, report preparation, or even examination might result in delay of deciding the case. If that delay were too extensive, it too might implicate due process and other statutory demands. 
Thus, we return to the recent appellate decision. In Falk, the Court concluded that the expert medical advisor did not render an opinion regarding the medical questions asked. The Court noted that the worker had been evaluated by three neurologists. The judge appointed an EMA neurosurgeon in the case. The EMA, according to the Court "offered no independent opinion regarding the head injuries." Furthermore, the neurosurgeon EMA did not conclude "that Dr. Tatum’s (one of the neurologists) opinion was correct." Instead, the EMA "simply deferred to Dr. Tatum." Thus, the EMA did not fulfill the role of EMA. The Court concluded "a blanket deference is not an EMA opinion." 
The Court did not instruct the trial judge on remand, to provide the EMA physician with instruction or to request clarification of the EMA's opinions. The Court instead concluded that "the JCC should have stricken him as the EMA and appointed another." The statutory authority to strike an EMA is not clear. As discussed above, there have been instances in which litigation over such an action have ensued. But, the authority to strike an EMA is now clear, from Falk, that not only does a JCC have the authority to appoint a new EMA the judge is obligated to do so. 
The facts of Falk might be worthy of consideration. Did the EMA render opinions and deference only in the EMA report, or was there testimony? This might be pertinent in the decision of whether to seek to strike an EMA. If an EMA report is not sufficiently conclusive or is a "blanket deference," is a motion to strike immediately appropriate? Or, would the parties be obligated to explore those opinions through the testimony process in a search for clarification or explanation before moving to strike? 
There may also be those who will see the absolute of Falk, "blanket deference" and question whether the EMA physician is similarly subject to being stricken if there is deference of any degree whatever. They may ask what extent of deference is appropriate, if any. May an EMA defer in any event, to any degree? To one of the doctors involved in the conflicting opinions, or to a neurologist that interpreted an MRI, or to a pathologist that examined a biopsy? If the EMA may defer to some extent, but not adopt a "blanket deference," then there may be factual disputes as to whether any particular EMA's deference was or was not too extensive. That might need the interaction of a deposition to define and describe. 
Ultimately, however, Falk answers one question clearly. The EMA appointment of the OJCC is not an absolute. The provider is empowered by the authority of this Office and remains subject to it. Thus, the trial judge is empowered in the right circumstances to strike an EMA after appointment and even after rendition of opinions. While the statute is less than clear on this, the outcome is logical and consistent with the purpose of the EMA statute, and the due process concerns inherent generally to litigation.
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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