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On June 18, 2019, the Florida First District Court rendered Abreu v. Riverland Elementary, ___ So. 3d ____; No. 1D17-2755 (Fla. 1st DCA 2019). The injured worker there took issue with the application of the Expert Medical Advisor (EMA) statute, section 440.13(9)(c), Florida Statutes. The subject of EMA has appeared in this blog before. The Striking of an EMA, Not with a Bang, but with a Whimper.
The Abreu opinion revisits some authority that is familiar, including Delisle v. Crane Co., 258 So. 3d 1219 (Fla. 2018)(Dissing Daubert, Daubert's New Day) and Amendments to Florida Rules of Workers' Compensation Procedure, 891 So. 2d 474 (Fla. 2004)(Separation of Powers, Conferring Jurisdiction).
This case is significant because the injured worker:
"challenges the statutory (EMA) presumption as violative of separation of powers, equal protection, and due process guarantees of the Florida and federal constitutions."
There is a perception that constitutional challenges to workers' compensation are on the increase. Some see a tendency toward viewing those analyses from an atomistic rather than holistic perspective. The worker in Abrue sought to have the judge's decision set aside on the argument that the statute was affecting an unconstitutional encroachment upon her rights particularly. See A Procedural Progeny Potential of Castellanos, Constitutional Law in Florida 2016, Westphal is Over, Questions Remain. The Court in Abreu concluded that the EMA statute was not unconstitutional either "as applied" or "facially," and affirmed the trial judge's decision and reliance on the EMA report.
The injured worker, Ms. Abreu, sought a judicial determination to provide her with a shoulder surgery. The initial authorized treating physician performed surgery once. Then the worker sought an alternative orthopedic surgeon, who did not recommend further surgery. The worker then sought care with "an unauthorized orthopedic physician" who did recommend surgery. The employer then authorized yet another orthopedic surgeon who also concluded that further surgery was not recommended. Such a conflict in medical opinions is not uncommon in workers' compensation.
The matter thus proceeded to litigation, and the injured worker obtained an independent medical examination (IME) regarding the surgery recommendation. The testimony of the unauthorized surgeon with whom she had sought care was not admissible as evidence under the law. This is a critical point, the Florida workers' compensation law affects the admissibility of evidence in various ways, including limiting opinion testimony to authorized treating physicians, expert medical advisors and independent medical examiners. Section 440.13(5)(e):
"(e) No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims." See also Office Depot v. Sweikata, 737 So. 2d 1189 (Fla. 1st DCA 1999).
The IME agreed surgery was both necessary and related to the work injury. Thus, there was a conflict between the opinions of the authorized physicians and the workers' IME. The judge therefore appointed an Expert Medical Examiner (EMA), who concluded that further surgery was not medically necessary or recommended. The statute affords the opinions of an EMA a presumption of correctness. It may be disregarded only if contradicted by clear and convincing evidence. It is also noteworthy in this case that the EMA physician did not testify in the trial, and only his written report was therefore in evidence. The judge accepted the EMA opinion and denied the worker's claim for authorization of surgery. That led to the appeal.
The Court noted that the explicit constitutional challenge was "as applied" (unconstitutional as applied to this particular worker's dispute), but that there was suggestion of a "facial" challenge in the documents filed by the lawyers in the appeal. The Court therefore analyzed both. When a decision concludes that a statute is unconstitutional, which did not occur in Abreu, it may be critical for the Court to be clear and specific as to whether the pronounced infirmity is "as applied" (the statute cannot be applied in this case) or "facial" (the statute cannot be applied in any case). When the conclusion is that a statute is not unconstitutional either facially or as applied, explanation of subtle distinctions between the two analyses is perhaps less critical.
It is noteworthy that the injured worker, after the judge ruled against the surgery claim, first sought to have the trial judge re-open the case for further evidence. Having elected to not obtain the EMA physician's testimony (at trial or by deposition), the worker then sought to re-open the evidence after trial. The Court noted that the decision not to depose the EMA was a "tactical decision" and that the judge did not err by declining to reopen the case following the issuance of the trial order. That is a critical point to guide attorneys. Tactical decisions on evidence may or may not be the best decisions, may or may not work out as planned, and often will be permanent choices.
The Court concluded that the EMA statute is constitutional. It noted the statute includes a "presumption of correctness" for the opinion of EMAs, but that presumption is rebuttable. The Court noted that the evidence required to rebut that opinion is significant, but noted there are other such statutory presumptions with similarly significant (clear and convincing) proof requirements.
The Court dismissed an argument that the statutory procedure that defines EMAs is an inappropriate legislative "procedural rule." The worker had argued that only the state Courts can define procedural rules, and asserted that the legislature's adoption of a procedural process violates the legal maxim of "separation of powers." In support, the worker relied upon the allegedly inviolate "supreme court’s authority to impose rules governing evidence." But, in Florida there is both an evidence code and there are evidence rules. See To D or not to D, that it appears, is the Question. That is a conundrum that frustrates both practitioners and academics. The Court was not persuaded, noting that the Supreme Court has concluded that it cannot proscribe procedure in the Executive Branch. Amendments to the Fla. Rules of Workers’ Comp. Procedure, 891 So. 2d 474 (Fla. 2004).
The worker also argued that the legislature defining process was an unconstitutional incursion (separation of powers) into the "executive branch’s ability to fairly adjudicate workers’ compensation claims." The Claimant argues the EMA presumption is impermissible as the "legislative branch" is "dictating (procedure) to the executive branch and without approval of the supreme court." As to the legislative delineations interfering with the authority of the Executive Branch, the injured worker essentially argued that because her IME in this case did not overcome the presumption of correctness of the EMA in this case that therefore:
"a single IME cannot produce the evidence necessary to reach the standard of contrary, clear and convincing evidence sufficient enough to successfully challenge an EMA opinion."
Essentially, the argument seems to be that if the evidence was not enough in this case, then "enough" simply cannot be achieved. The Court concluded that proceedings before the OJCC are "subject to statutory regulation." Indeed, the entire existence of workers' compensation, the OJCC, and the authority of its Judges is entirely the result of legislative creation, definition, and delineation. The Abreu Court noted multiple "examples of the Legislature dictating procedure in workers’ compensation actions." The Court also cited multiple prior decisions upholding the Legislature's authority to dictate evidentiary determinations and other procedures in this administrative process.
As an aside, the Court noted that the injured worker argued "that workers’ compensation proceedings must follow the rules of evidence." (emphasis added). That is an interesting point. The Courts have, however, concluded that the "evidence code applies to workers' compensation proceedings." In Dissing Daubert, there are several citations to cases specifically using "code" (what the legislature passed, not what the Supreme Court has adopted). In U.S. Sugar Corp. v. Henson, 787 So. 2d 3 (Fla. 1st DCA 2000), the Court makes specific reference to both the "Evidence Code, chapter 90, Florida Statutes," and to the applicability of "common law rules of evidence" that were applied in workers' compensation "prior to the adoption of the Evidence Code." Though the Court mentions the argument about evidence rules in Abreu, it is not clear from the decision what authority, if any, the injured worker has cited in support of that inference or allegation that the Court's "rules" apply to these proceedings.
In addressing concerns of due process, the Court reminded "that an injured employee’s right to receive workers’ compensation benefits qualifies as such a property interest." Thus there must be "procedural safeguards including notice and an opportunity to be heard," which must be "meaningful, full and fair, and not merely colorable or illusive." The Court noted that Ms. Abreu was afforded the opportunity to present the testimony of her IME. She therefore “was not completely denied the right to present evidence.” Therefore, "no violation of due process occurred." In this context, the tactical decision to forgo presenting some available evidence, the cross-examination testimony of the EMA physician, may be relevant.
The Court also discussed an interesting argument of the injured worker that the EMA statute violates "her equal protection rights guaranteed by Article I of the Florida Constitution and the Fourteenth Amendment . . .." But, the Court concluded that "the EMA statute applies equally to claimants and E/Cs alike." Furthermore, that the "Claimant has failed to pinpoint a classification created by the presumption which runs afoul of equal protection." An argument of equal protection is dependent upon the demonstration of a law either through word or impact effecting different results upon different groups or individuals based upon some inappropriate classification of those groups or individuals.
The decision is an interesting read. It helps with understanding of constitutional analysis, and the application of constitutional protections and constraints to statutory authority. In the end, the various challenges were not persuasive, and the Expert Medical Advisor remains a mandatory process in Florida workers' Compensation. Similar decision-making processes, such as California's Independent Medical Review (IMR) have similarly been upheld by the courts. See IMR and Due Process.
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About The Author
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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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