JEFFREY ALVARADO, PETITIONER,
v.
WACKENHUT CORPORATION AND GALLAGHER BASSETT SERVICES, INC., RESPONDENTS

Fla. 1st DCA | 2007-03-06
No. 1D06-6001
DAVIS, PADOVANO, and HAWKES, JJ., concur.
951 So. 2d 937 Florida District Court of Appeal, First District (2007)

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Synopsis

An employee challenges a workers' compensation judge's order appointing a neuropsychologist as an expert medical advisor to resolve conflicting medical opinions about work-related neurological injury. The appellate court holds that only physicians, narrowly defined by statute and rule, may serve as expert medical advisors, not neuropsychologists, and quashes the order.


Holding

A neuropsychologist cannot serve as an expert medical advisor because the statutory and administrative definitions of physician—which is the only permissible EMA qualification—do not include neuropsychologists. The court quashed the order and remanded for appointment of a qualified physician.


Headnotes

[1] A neuropsychologist cannot serve as an expert medical advisor (EMA) under Florida law.

[2] An expert medical advisor (EMA) must be a physician as defined by Florida Statutes.

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Key Quotes

“A neuropsychologist is not included in this narrow definition of physician; thus, a neuropsychologist may not serve as an EMA.”

States the core holding that neuropsychologists lack statutory qualification to serve as expert medical advisors despite their expertise in the disputed area.

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Facts & Procedural History

Claimant Alvarado suffered a work-related accident and sought workers' compensation benefits. Two neuropsychologists provided conflicting testimony re…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Claimant petitions for certiorari review of an order of the Judge of Compensation Claims (“JCC”) appointing a neuropsychol-ogist as an expert medical advisor (“EMA”). Because a neuropsychologist cannot serve as an EMA, we grant the petition and quash the order. The JCC in this case was presented with conflicting testimony from two neuro-psychologists concerning whether Claimant’s work-related accident caused any neurological dysfunction. The E/C filed a motion seeking the appointment of a neu-ropsychologist as an EMA and the JCC granted the motion. Claimant now seeks certiorari review of this order. When an appellate court reviews a non-appealable, non-final order, the petitioner must demonstrate that the order departs from the essential requirements of the law and that the resulting harm is irreparable and cannot be remedied on appeal of the final order. Chavez v. J & L Drywall & Travelers Ins. Co., 858 So. 2d 1266, 1268 (Fla. 1st DCA 2003). Claimant has established that he will suffer irreparable harm not remedial on appeal from this order because Claimant will have to undergo an invasive examination over his objection. Taylor v. Columbia/HCA Doctors Hosp., 746 So. 2d 1244, 1245 (Fla. 1st DCA 1999).

It was proper for the JCC to order the appointment of an EMA in this case because there was a disagreement in opinion between health care providers. § 440.13(9)(c), Fla. Stat. (2002); Broward Children’s Ctr., Inc. v. Hall, 859 So. 2d 623, 627 (Fla. 1st DCA 2003) (holding that “the clear intent of section 440.13(9)(c) is to require participation of an expert medical advisor in every case where a disagreement exists between healthcare providers.”) However, the JCC departed from the essential requirements of the law by ordering the appointment of a neuropsy-chologist as an EMA. Florida Administrative Code Rule 59A-30.002(10) (2006) defines an EMA as a “physician.” Section 440.13(1)(r), Florida Statutes (2002), defines a physician as a person “licensed under chapter 458, an osteopathic physician licensed under chap ter 459, a chiropractic physician licensed under chapter 460, a podiatric physician licensed under chapter 461, an optometrist licensed under chapter 463, or a dentist licensed under chapter 466, each of whom must be certified by the division as a health care provider.” A neuropsychologist is not included in this narrow definition of physician; thus, a neuropsychologist may not serve as an EMA. Accordingly, we grant the petition for writ of certiorari, quash the order appointing a neuropsychologist, and remand for the appointment of a physician to resolve the dispute in this case.

DAVIS, PADOVANO, and HAWKES, JJ., concur.


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