HELMSMAN MANAGEMENT SERVICES, APPELLANTS,
v.
TERESA GARNER, APPELLEE
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The First District Court of Appeal reversed a permanent total disability award because the judge of compensation claims incorrectly denied the employer's timely request for an expert medical advisor evaluation when conflicting medical opinions emerged at the final hearing regarding the claimant's impairment rating and work restrictions.
The court reversed and remanded because the employer's request for an expert medical advisor was timely and appropriate. When, due to incomplete pretrial disclosure of expert opinions, counsel first becomes reasonably aware of substantial disagreement in medical opinions at the final hearing, the request for an expert medical advisor is not untimely, and the JCC shall order such an evaluation under section 440.13(9)(c).
[1] A judge of compensation claims must grant a motion for the appointment of an expert medical advisor when there is a disagreement in the opinions of health care providers…
[2] The requirement to exchange expert witness names and reports prior to a final hearing is intended to ensure that parties are aware of the substance of expert opinions wel…
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Join FLexlaw to unlock all legal intelligence“These 'reports should clearly disclose the expert opinions and its basis on all subjects on which the expert will testify.' Rule 4.045(h)(5), Fla. R. Work. Comp. P.”
Establishes the mandatory pretrial disclosure requirement for expert opinions so parties know the substance of expert opinions substantially prior to final hearing.
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Join FLexlaw to unlock all legal intelligenceTeresa Garner, a meter reader, suffered a head injury and herniated discs when struck by a wooden gate. Dr. Weiss, a neurologist retained by claimant,…
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Florida Power & Light and Helmsman Management Services (jointly the employer/carrier) appeal an order of the judge of compensation claims (JCC) awarding claimant, Teresa Garner, permanent total disability benefits. The employer/carrier raise two issues, only one of which has merit. Specifically, they contend the JCC should have granted their motion for the appointment of and evaluation by an expert medical advisor pursuant to section 440.13(9)(c), Florida Statutes (1995).1 Based upon Palm Springs General Hosp. v. Cabrera, 698 So. 2d 1352 (Fla. 1st DCA 1997), and Walsdotf Sheet Metal Works, Inc. v. Gonzalez, 719 So. 2d 355, 23 Fla. L. Weekly D2407 (Fla. 1st DCA 1998), we agree and reverse.
Claimant, a meter reader for Florida Power & Light, was injured when she was struck on the head by a large wooden gate, suffering a concussion and herniated and bulging discs. She sought an independent medical examination with Dr. Weiss, a neurologist. In his report prepared before the final hearing, the doctor recommended testing and stated his final opinion would follow the results from these tests. His deposition was not taken before the final hearing. The parties’ pretrial stipulation was admitted into evidence the day of the final hearing. It neither lists Dr. Weiss as a witness nor sets forth a summary of his expert opinion on claimant’s permanent impairment rating or work restrictions.
At the final hearing, Dr. Weiss testified that claimant had a combined 40-45% permanent impairment rating and significant work restrictions. Counsel for the employer/carrier expressed surprise at this testimony and requested the appointment of an expert medical advisor because of the disagreement between Dr. Weiss’ opinion and the opinions of the other health care providers who had examined claimant. The JCC denied the motion as untimely, commenting that counsel could have taken the deposition of Dr. Weiss. Counsel responded that he would have scheduled Dr. Weiss’ deposition if the doctor had included in his report (or in a supplemental report) his opinion on the impairment rating and work restrictions.
In Gonzalez, this court explained that, either at the pretrial conference or in the pretrial stipulation, the parties are obligated to exchange the names of expert witnesses and their written reports. See rule 4.045, and forms 4.909, 4.9092, and 4.910(a) and (b), Fla. R. Work. Comp. P. These “reports should clearly disclose the expert opinions and its basis on all subjects on which the expert will testify.” Rule 4.045(h)(5), Fla. R. Work. Comp. P. The pretrial stipulation can be amended in the event an expert’s opinion changes or is supplemented.
If parties follow the pretrial procedure anticipated by rule 4.045, the parties would know the substance of expert opinions substantially prior to the final hearing so that the hearing can proceed without interruption and the JCC may adjudicate the merits of the claim expeditiously. In addition, if rule 4.045 is followed, ordinarily any need for the appointment of an expert medical advisor pursuant to section 440.13(9)(c) would be known well in advance of the final hearing. That did not occur here. The first time counsel for the employer/carrier was reasonably aware of the extent of the differences in expert medical opinions was at the final hearing. Cabrera, 698 So. 2d at 1354. As a result, the determination of claimant’s benefits must be delayed to allow for the evaluation of claimant by an expert medical advisor. REVERSED and REMANDED for further proceedings consistent with this opinion.
BOOTH and BENTON, JJ., CONCUR. . Section 440.13(9)(c), Fla. Stat. (1995) provides in pertinent part:
If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the division may, and the judge of compensation claims shall, upon his own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor. The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.
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AT&T Wireless & Kemper Ins. v. Frazier, 871 So. 2d 939 (Fla. 1st DCA 2004)…party requests appointment of an EMA. See Palm Springs General Hospital v. Cabrera, 698 So. 2d 1352 (Fla. 1st DCA 1997). See also Martinez v. Healthsouth Doctor's Hospital, 817 So. 2d 1080 (Fla. 1st DCA 2002); Helmsman Management Services v. Garner, 725 So. 2d 1188 (Fla. 1st DCA 1998); Claims Management, Inc. v. Lake, 717 So. 2d 140 (Fla. 1st DCA 1998). And see Broward Children’s Center, Inc. v. Hall 859 So. 2d 623 (Fla. 1st DCA 2003); Siemens Information & Communications Network v. Collins, 854 So. 2d 271 (Fl…
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Arvida River Hills Country Club & Zurich-American Ins. Grp. v. VAN Slyke, 728 So. 2d 1213 (Fla. 1st DCA 1999)…did not surface by surprise at the hearing, the E/C have not demonstrated that this case presents “extraordinary circumstances” justifying the taking of post-hearing evidence. See Fla. R. Work. Comp. P. 4.085(h); cf. Helmsman Mgmt. Servs. v. Garner, 725 So. 2d 1188 (Fla. 1st DCA 1998). Accordingly, we AFFIRM. ERVIN and ALLEN JJ., CONCUR.…
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Siemens Info. & Commc'ns Network & Travelers Prop. Cas. v. Collins, 854 So. 2d 271 (Fla. 1st DCA 2003)…ions of the healthcare providers in this case became apparent and did not delay the discovery of these disagreements. See Palm Springs General Hospital v. Cabrera, 698 So. 2d 1352 (Fla. 1st DCA 1997); see also Helmsman Management Services v. Garner, 725 So. 2d 1188 (Fla. 1st DCA 1998). Accordingly, the order under review is reversed and this case is remanded. BOOTH, BARFIELD and ALLEN, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Palm Springs Gen. Hosp. & Fla. Retail Fed'n SIF v. Cabrera, 698 So. 2d 1352 (Fla. 1st DCA 1997)
- Walsdorf Sheet Metal Works, Inc. v. Gonzalez, 719 So. 2d 355 (Fla. 1st DCA 1998)