final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
of Accident: June 1, 2015.
appeal from an order of the Judge of Compensation Claims.
Geraldine B. Hogan, Judge.
L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for
Laurence F. Leavy of Laurence Leavy and Associates, P.A.,
Fort Lauderdale, for Appellees.
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.
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
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
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. 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
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.
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.
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.
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 ...