HORTICULTURE PLUS, INC., AND FLORIDA RETAIL FEDERATION SELF INSURER'S FUND, APPELLANTS,
v.
VINCENT MICHAEL ASH, APPELLEE
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In a workers' compensation death case, the Florida appellate court reversed and remanded, holding that the Judge of Compensation Claims erred by failing to appoint a mandatory expert medical advisor when medical causation was disputed, and by allowing testimony from two independent medical examiners without satisfying statutory requirements.
The court held that section 440.13(9)(c) mandatorily requires appointment of an expert medical advisor when causation is disputed, and the JCC erred as a matter of law in ruling the statute inapplicable. The court also held that the admission of two independent medical examiners' testimony was error because the claimant failed to make the required statutory showing under section 440.13(5)(b) that the second IME was necessary due to different medical specialties.
[1] A Judge of Compensation Claims must appoint an expert medical advisor when the issue is one of causation.
[2] A physician is considered a health care provider for the purposes of workers' compensation statutes.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Contrary to the JCC's ruling, section 440.13(9)(c), Florida Statutes, provides for the mandatory appointment of an EMA where the issue is one of causation.”
Establishes that the statute mandatorily requires appointment of expert medical advisor in causation disputes, contrary to the JCC's ruling.
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Join FLexlaw to unlock all legal intelligenceEmployee Vincent Ash died on October 18, 1997, survived by his wife and minor daughter. The parties disputed whether Ash's death resulted from heart d…
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POLSTON, J.
Employee Vincent Ash died on October 18, 1997, and is survived by his wife, Amy Ash, and his minor daughter. The parties dispute whether Mr. Ash’s death was caused by (i) heart disease, or (ii) exposure to the herbicide Diquat Dibromide in combination with the physical exertion necessitated to spray the herbicide. Appellants assert that the Judge of Compensation Claims (“JCC”) erred by not appointing an expert medical advisor (“EMA”) pursuant to section 440.13(9)(c), Florida Statutes.
Contrary to the JCC’s ruling, section 440.13(9)(c), Florida Statutes, provides for the mandatory appointment of an EMA where the issue is one of causation. See Palm Springs General Hospital v. Cabrera, 698 So. 2d 1352, 1355-56 (Fla. 1st DCA 1997) (§ 440.13(9)(c) is mandatory; EMA should have been appointed where there was a dispute over whether the claimant’s injuries resulted from his accident at work or due to a preexisting condition).
Because the JCC ruled as a matter of law that section 440.13(9)(c) was not applicable to this case, he did not reach the factual determination as to whether there was disagreement in the opinions of health care providers under the statute. A “physician” is a health care provider, if certified by the Division of Workers’ Compensation. See sections 440.13(1)(r), 440.13(1)(i), Fla. Stat. (1997); Pierre v. Handi Van, Inc., 717 So. 2d 1115, 1117 n. 3 (Fla. 1st DCA 1998)(physicians are considered to be health care providers by general definition, citing § 440.13(1)).
The JCC did not make any findings as to whether the testifying physicians were certified by the Division of Workers’ Compensation.1 Accordingly, we remand for the JCC to determine whether the conditions required to appoint an EMA are present in this case.
Appellants also argue that the JCC erred by allowing the claimant to introduce the testimony of two independent medical examiners (“IME”).
We agree. The JCC overruled Appellants’ objection to the use of two IMEs “based on the different medical specialties” of the two physicians. Because the claimant did not make the showing for another IME required by section 440.13(5)(b), Florida Statutes (1997), the JCC’s admission of two IME’s testimony was in error. See Watkins Engineers and Constructors v. Wise, 698 So. 2d 294, 296 (Fla. 1st DCA 1997) (E/C failed to make showing under § 440.13(5)(b)(l) that second IME was permitted because an aspect of the employee’s illness was outside of one physician’s field and otherwise within the field of another physician; “[w]e reject the E/C’s argument that the statute permits multiple IME’s by physicians of different specialties”).
We cannot say that the error was harmless. See Crawford & Company v. Baxla, 746 So. 2d 576, 577 (Fla. 1st DCA 1999)(admission of unauthorized physician testimony was erroneous, and although considered harmless in this case, “[i]n the future, such an erroneous admission will, in all likelihood, not be considered harmless and will result in reversal with the attendant inconvenience and expense.”).
REVERSED and REMANDED.
ERVIN and KAHN, JJ., concur. . Contrary to the Appellants’ argument, claimant preserved this issue for appeal by presenting it to the JCC.
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Chapman v. Nationsbank & Royal & Sunalliance Ins., 872 So. 2d 390 (Fla. 1st DCA 2004)…etween physician opinions once the claimant has requested an EMA. If there is conflict or contradiction on any material aspect of the experts’ medical or psychological opinions, the JCC must appoint an EMA. See, e.g., Horticulture Plus, Inc. v. Ash, 791 So. 2d 535 (Fla. 1st DCA 2001) (reversing denial of motion for EMA, for the reason that appointment of an EMA is mandatory when there are conflicting medical opinions regarding causation); City of Inverness v. Volmar, 768 So. 2d 1253 (Fla. 1st DCA 2000) (rever…
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AA Gutter Cleaning, Inc. v. Cesario, 49 So. 3d 281 (Fla. 1st DCA 2010)…rred as matter of law in his interpretation of section 440.13(9), we reverse the denial of the request for appointment of an expert medical advisor, and remand for further proceedings consistent with this opinion. See Horticulture Plus, Inc. v. Ash, 791 So. 2d 535, 536 (Fla. 1st DCA 2001) (reversing a determination that, as matter of law, section 440.13(9)(c) did not apply, and remanding because the judge failed to make a determination as to whether a factual disagreement existed between health care providers…
Authorities Cited
- Palm Springs Gen. Hosp. & Fla. Retail Fed'n SIF v. Cabrera, 698 So. 2d 1352 (Fla. 1st DCA 1997)
- Pierre v. Handi VAN, Inc., 717 So. 2d 1115 (Fla. 1st DCA 1998)
- Watkins Eng'rs & Constructors & Gallagher Bassett v. Wise, 698 So. 2d 294 (Fla. 1st DCA 1997)
- Crawford & Co. v. Baxla, 746 So. 2d 576 (Fla. 1st DCA 1999)