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Abreu v. Riverland Elementary School and Broward County School Board

Florida Court of Appeals, First District

June 18, 2019

Teresita De Jesus Abreu, Appellant,
Riverland Elementary School and Broward County School Board, Appellees.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          Date of Accident: June 1, 2015.

          On appeal from an order of the Judge of Compensation Claims. Geraldine B. Hogan, Judge.

          Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.

          Laurence F. Leavy of Laurence Leavy and Associates, P.A., Fort Lauderdale, for Appellees.

          M.K. Thomas, J.

         In this workers' compensation case, the Claimant appeals the denial of shoulder surgery, arguing that section 440.13(9)(c), Florida Statutes, which provides a presumption of correctness to expert medical advisor ("EMA") opinions, is unconstitutional. The Claimant challenges the statutory presumption as violative of separation of powers, equal protection, and due process guarantees of the Florida and federal constitutions. We disagree and affirm.

         I. Facts

         In 2015, the Claimant injured her shoulder while at work. The Employer/Carrier ("E/C") accepted compensability of the accident and injury and authorized treatment with Drs. Weinberg, Meli, and Ross. Dr. Weinberg performed an arthroscopic shoulder surgery to address a partial rotator cuff tear. Soon afterward, the Claimant's condition worsened, and she requested and received an alternate orthopedic physician, Dr. Meli. In February 2016, Dr. Meli placed the Claimant at maximum medical improvement ("MMI") and assigned a zero percent permanent impairment rating.

         Thereafter, the Claimant reported persistent shoulder pain but Dr. Meli advised he had no further recommendations. As a result, the Claimant discontinued care with Dr. Meli and sought care with Dr. Fletcher, an unauthorized orthopedic physician. Dr. Fletcher recommended the additional surgery, which is now at issue. The E/C authorized Dr. Ross, also an orthopedist, who placed the Claimant at MMI on August 6, 2016, as she had "not made any improvement with physical therapy, injections, or other modalities." Dr. Ross did not recommend further surgery because a shoulder tear "less than halfway through might not lend itself to surgical repair . . ." In his opinion, further surgery was not medically necessary.

         The Claimant filed a petition for benefits seeking authorization of shoulder surgery as recommended by Dr. Fletcher. The E/C contested the surgery on grounds that no authorized provider(s) made the recommendation. As Dr. Fletcher was not an authorized treating physician or independent medical examiner ("IME"), his opinions were not admissible.[1] Accordingly, the Claimant obtained an IME with Dr. Aparicio. Dr. Aparicio reported his review of diagnostic studies revealed a full thickness rotator cuff tear which he causally related to the work accident. In his opinion, additional surgical repair was warranted and medically necessary.

         Because of the conflict in medical opinions, the Judge of Compensation Claims ("JCC") appointed Dr. Rozencwaig as an EMA pursuant to section 440.13(9), Florida Statutes. Dr. Rozencwaig opined that the Claimant did not suffer from a full thickness rotator cuff tear and that no further surgery was recommended or medically necessary. Neither the Claimant nor the E/C deposed Dr. Rozencwaig. The EMA report was the sole source of his opinions.

         At merits hearing, the Claimant argued the EMA opinion should be rejected as inconclusory, baseless, and not supported by competent, substantial evidence ("CSE") because the request for surgery was based not only on the recommendation of an unauthorized physician, Dr. Fletcher, but also on that of the Claimant's IME, Dr. Aparicio; that the EMA did not perform a thorough examination; and that the EMA opinions should be rejected because there exists clear and convincing evidence to the contrary.

         The JCC denied the request for surgery based on the opinion of the EMA, finding that although the Claimant's IME testimony "is persuasive," she was not convinced, "without hesitancy, that the opinions of the EMA are not correct." The Claimant moved for rehearing and to vacate the final order, asserting that the JCC seemingly believed, in error, that the EMA's opinion was irrefutable, that it was instead conclusory, and that clear and convincing evidence existed to reject it. The Claimant moved to reopen the evidence and allow the deposition of the EMA. The JCC denied both motions as an attempt to relitigate issues previously determined. The Claimant now challenges the constitutionality of section 440.13(9)(c), the "EMA statute," which grants a presumption of correctness to EMA opinions and appeals the denial of surgery. [2]

         II. Legal Analysis

         The EMA Statute

         The EMA statute provides that EMAs are to be certified "to assist . . . the [JCC] within the advisor's area of expertise," and that EMAs are intended to "provide peer review or expert medical consultation, opinions, and testimony . . . to a [JCC] in connection with resolving disputes relating to . . . differing opinions of health care providers . . . ." § 440.13(9)(a)-(b), Fla. Stat. The statute further provides:

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 department may, and the judge of compensation claims shall, upon his or her 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 ...

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