ARVIDA RIVER HILLS COUNTRY CLUB AND ZURICH-AMERICAN INSURANCE GROUP, APPELLANTS,
v.
JOAN T. VAN SLYKE, APPELLEE
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Arvida River Hills Country Club and its insurance carrier appealed a workers' compensation order finding an employee permanently totally disabled from two work-related accidents. The court affirmed, holding that the judge of compensation claims committed no reversible error by declining to sua sponte appoint an expert medical advisor when the employer failed to timely request one.
The court held that the judge's failure to sua sponte order an expert medical advisor evaluation in the absence of a timely party request is not fundamental error and does not warrant reversal. A party cannot wait until after an adverse order to raise this issue when they had procedural opportunities to request such evaluation beforehand.
[1] A judge of compensation claims is not required to sua sponte order an evaluation by an expert medical advisor in the absence of a timely request by a party.
[2] A post-hearing request for the appointment of an expert medical advisor is not timely.
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Join FLexlaw to unlock all legal intelligence“The JCC's failure to order an evaluation by an expert medical advisor in the absence of a timely request by a party is not a fundamental error.”
Establishes that sua sponte appointment of expert medical advisor is not required when party fails to timely request one
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Join FLexlaw to unlock all legal intelligenceJoan Van Slyke sustained compensable work-related accidents on May 1, 1996 and August 28, 1996. Medical evidence consisted of depositions taken before…
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DAVIS, J.
Arvida River Hills Country Club and Zurich American Insurance Group (employer and carrier, respectively, hereinafter E/C) appeal an order rendered June 10, 1998, finding Joan Van Slyke permanently totally disabled as a result of compensable accidents which occurred in the course and scope of her employment on May 1, 1996 and August 28, 1996. The sole issue raised on appeal is whether the judge of compensation claims (hereinafter JCC) committed reversible error by not sua sponte ordering an evaluation by an expert medical advisor in the absence of any timely request by a party. We affirm.
The medical evidence in this case consists of depositions taken before the final hearing. At the April 22, 1998, hearing it was the E/C’s position that “the medical records speak for themselves....” Far from arguing (even at that late date) that the medical testimony contained conflicts requiring the appointment of an expert medical advisor, the E/C argued that the medical testimony clearly established a lack of compensability. Not until nine days after rendition of the order awarding benefits did the E/C move for appointment of an expert medical advisor and argue in the alternative that the order should be vacated because the JCC failed to satisfy an independent obligation to appoint such an advisor. The post-hearing request for appointment of an expert medical advisor was not timely. See W.S. Badcock Corp. v. Knight, 720 So. 2d 619 (Fla. 1st DCA 1998).
The JCC’s failure to order an evaluation by an expert medical advisor in the absence of a timely request by a party is not a fundamental error. It would adversely impact the administration of justice to permit a party to ignore their obligation to diligently defend, and to wait until after an adverse order has been rendered, to raise this issue. As this court suggested in Palm Springs General Hosp. v. Cabrera, 698 So. 2d 1352, 1355 n. 3 (Fla. 1st DCA 1997), a party who did not seek an evaluation below should not “be heard on appeal to complain of the failure to designate an expert medical advisor.” The rules of procedure governing workers’ compensation proceedings provide ample opportunity for pretrial determination of the issues. See Walsdorf Sheet Metal Works, Inc. v. Gonzalez, 719 So. 2d 355 (Fla. 1st DCA 1998).
The parties have an obligation to diligently prosecute or defend the claim or petition. See Fla. R. Work. Comp. P. 4.075(b). Particularly in view of the fact that all of the medical testimony was adduced in pretrial depositions and the conflicts now relied upon 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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AT&T Wireless & Kemper Ins. v. Frazier, 871 So. 2d 939 (Fla. 1st DCA 2004)…tment of an EMA and the ensuing compensation order are both REVERSED and the case is REMANDED to the JCC for further proceedings consistent with this opinion. BARFIELD, KAHN, and HAWKES, JJ., CONCUR. . Arvida River Hills Country Club v. Van Slyke, 728 So. 2d 1213 (Fla. 1st DCA 1999) (post-hearing request for appointment of EMA made nine days after rendition of the compensation award, when all the medical testimony was adduced in pretrial depositions); W.S. Badcock Corp. v. Knight, 720 So. 2d 619 (Fla. 1st DC…
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Alvaro Quiroga v. First Baptist Church AT Weston & Guideone Ins., 124 So. 3d 936 (Fla. 1st DCA 2013)…EMA where there is a disagreement in medical opinions, a party who does not timely seek the appointment of an EMA below will not “be heard on appeal to complain of the failure to designate an [EMA].” See Arvida River Hills Country Club v. Van Slyke, 728 So. 2d 1213, 1214 (Fla. 1st DCA 1999)(“The JCC’s failure to order an evaluation by an [EMA] is not fundamental error.”); see also Palm Springs Gen. Hosp v. Cabrera, 698 So. 2d 1352, 1355 n. 3 (Fla. 1st DCA 1997)(“We do not suggest that failure to order [an EMA]…
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Steinberg v. City OF Tallahassee/City of Tallahassee Risk Mgmt., 186 So. 3d 61 (Fla. 1st DCA 2016)…untimely at five months when requested at close of final hearing); W.S. Badcock Corp. v. Knight, 720 So. 2d 619 (Fla. 1st DCA 1998) (untimely at nine months when requested two days before final hearing); Arvida River Hills Country Club v. Van Slyke, 728 So. 2d 1213, 1214 (Fla. 1st DCA 1999) (untimely when requested nine days after rendition of order awarding compensation, where all medical testimony was adduced in pretrial depositions). In the instant case, the first Banuchi notice was filed, not only 32 days…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
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)
- Helmsman Mgmt. Servs. v. Garner, 725 So. 2d 1188 (Fla. 1st DCA 1998)
- W.S. Badcock Corp. & Commercial Risk Mgmt., Inc. v. Knight, 720 So. 2d 619 (Fla. 1st DCA 1998)