MEDIA GENERAL, INC. AND KEMPER NATIONAL INSURANCE COMPANY, APPELLANTS,
v.
TERESA M. MCGUIRE, APPELLEE
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The court reversed a workers' compensation judge's award of intradiscal electrothermal therapy to Teresa McGuire, holding that the judge erred by failing to appoint an expert medical advisor (EMA) when faced with a substantial conflict in medical opinions—one doctor opposing the treatment and two recommending it.
The failure to appoint an expert medical advisor was error. Section 440.13(9) imposes a statutory duty on the judge of compensation claims to order evaluation by an EMA before ruling on the merits when there is a substantial conflict in medical opinions, regardless of whether such conflict becomes apparent only after the merits hearing begins or whether a party requests the appointment.
[1] A judge of compensation claims has a statutory duty to appoint an expert medical advisor when there is a substantial conflict in medical opinions regarding a claimant's n…
[2] The failure to appoint an expert medical advisor constitutes error when a material conflict exists in the medical opinions presented.
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“Section 440.13(9) imposes upon the JCC a statutory duty to order that the claimant be evaluated by an EMA before ruling on the merits of the petition for benefits whenever it becomes apparent that there is a substantial conflict in the medical opinions, even if the conflict in medical opinions becomes evident only after the merits hearing has begun, and even if neither party requests appointment of an EMA.”
Establishes the bright-line statutory duty to appoint an EMA in cases of medical opinion conflict, regardless of timing or party request
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceTeresa McGuire sought authorization for intradiscal electrothermal therapy. Drs. Maser and Trimble recommended the therapy, while Dr. Companioni, a bo…
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BENTON, J.
At issue on this appeal is whether the judge of compensation claims properly awarded Teresa McGuire authorization for intradiscal electrothermal therapy without appointing a timely requested expert medical advisor to evaluate whether she needed such therapy. Drs. Maser and Trimble recommended the therapy, while Dr. Com-panioni, a board certified orthopedist, testified that the therapy was not curative or medically necessary. In reaching her decision, the judge of compensation claims rejected Dr. Companioni’s opinion and accepted Dr. Trimble’s and Dr. Maser’s.
The failure to appoint an expert medical advisor was error. See AT & T Wireless v. Frazier, 871 So. 2d 939, 2004 WL 609298 (Fla. 1st DCA March 30, 2004) (“Section 440.13(9) imposes upon the JCC a statutory duty to order that the claimant be evaluated by an EMA before ruling on the merits of the petition for benefits whenever it becomes apparent that there is a substantial conflict in the medical opinions, even if the conflict in medical opinions becomes evident only after the merits hearing has begun, and even if neither party requests appointment of an EMA.”); Martinez v. HealthSouth Doctor’s Hosp., 817 So. 2d 1080 (Fla. 1st DCA 2002); Helmsman Mgmt. Servs. v. Garner, 725 So. 2d 1188 (Fla. 1st DCA 1998); Claims Mgmt., Inc. v. Lake, 717 So. 2d 140 (Fla. 1st DCA 1998); Palm Springs Gen. Hosp. v. Cabrera, 698 So. 2d 1352 (Fla. 1st DCA 1997). See also Broward Children's Ctr., Inc. v. Hall, 859 So. 2d 623 (Fla. 1st DCA 2003); Siemens Info. & Communications Network v. Collins, 854 So. 2d 271 (Fla. 1st DCA 2003). The conflict in medical opinion was material. It lay at the heart of the case.
Reversed and remanded.
BARFIELD, J., concurs; DAVIS, J., dissents with opinion.
DAVIS, J.,
dissenting.
Drs. Maser and Trimble opined that the therapy was medically necessary for the claimant. Dr. Companioni opined that the therapy was not medically necessary for anyone, including the claimant. These opinions do not constitute a disagreement as to whether the therapy is medically necessary for the claimant, but rather, whether the therapy is a reliable, tested procedure. Thus, the JCC did not abuse her discretion in finding that there was insufficient evidence of a material dispute to necessitate the appointment of an expert medical advisor. Accordingly, I respectfully dissent. I would affirm the JCC’s order in its entirety.
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Mosquera v. Home Shopping Network EN Espanol, 890 So. 2d 1237 (Fla. 1st DCA 2005)…Nationsbank, 872 So. 2d 390, 392 (Fla. 1st DCA 2004). In Chapman, we observed that “[t]he JCC does not have the authority to resolve conflicts between physician opinions once the claimant has requested an EMA.” See also Media Gen., Inc. v. McGuire, 871 So. 2d 1045 (Fla. 1st DCA 2004); AT & T Wireless v. Frazier, 871 So. 2d 939, 940 (Fla. 1st DCA 2004); Palm Springs Gen. Hosp. v. Cabrera, 698 So. 2d 1352, 1354 (Fla. 1st DCA 1997). Accordingly, we reverse the order denying claimant’s claim for temporary parti…
Authorities Cited
- Palm Springs Gen. Hosp. & Fla. Retail Fed'n SIF v. Cabrera, 698 So. 2d 1352 (Fla. 1st DCA 1997)
- Manassas Invs., Inc. v. Edward J.A. O'Hanrahan, Jr., 817 So. 2d 1080 (Fla. 2d DCA 2002)
- Broward Child's. Ctr. v. Hall, 859 So. 2d 623 (Fla. 1st DCA 2003)
- Helmsman Mgmt. Servs. v. Garner, 725 So. 2d 1188 (Fla. 1st DCA 1998)
- AT&T Wireless & Kemper Ins. v. Frazier, 871 So. 2d 939 (Fla. 1st DCA 2004)
- Coffield v. State, 717 So. 2d 140 (Fla. 1st DCA 1998)
- Siemens Info. & Commc'ns Network & Travelers Prop. Cas. v. Collins, 854 So. 2d 271 (Fla. 1st DCA 2003)