Abreu v. Riverland Elementary Sch.
| Decision Date | 18 June 2019 |
| Docket Number | No. 1D17-2755,1D17-2755 |
| Citation | 301 So.3d 1005 |
| Parties | Teresita DE JESUS ABREU, Appellant, v. RIVERLAND ELEMENTARY SCHOOL and Broward County School Board, Appellees. |
| Court | Florida District Court of Appeals |
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.
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.
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
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 advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge of compensation claims.
§ 440.13(9)(c), Fla. Stat. (2015) (emphasis added).
This Court has previously determined the EMA statute to be substantive because it "affects ... the entitlement to a service and the source of payment therefor." Snider v. Mumford, Inc. , 65 So. 3d 579, 582 (Fla. 1st DCA 2011) ). Thus, the EMA statute cannot be applied retroactively. Id.
An EMA is a form of IME. Section 440.13(1)(i), Florida Statutes, provides:
"Independent medical examination" means an objective evaluation of the injured employee's medical condition, including, but not limited to, impairment or work status, performed by a physician or an expert medical advisor at the request of a party, a judge of compensation claims, or the department to assist in the resolution of a dispute arising under this chapter.
This Court has acknowledged that IME provisions should not be applied in isolation but must be considered in light of other statutory processes. Cooper , 659 So. 2d at 340. Section 440.25(4)(d), Florida Statutes, further provides:
When there is a conflict in the medical evidence submitted at the hearing, the provision of s. 440.13 shall apply. The report or testimony of the expert medical advisor shall be admitted into evidence in a proceeding and all costs incurred in connection with such examination and testimony may be assessed as costs in the proceeding, subject to the provisions of s. 440.13.
First, the Claimant raises a constitutional challenge to the presumption of correctness afforded an EMA, asserting it is a "procedural rule" which violates the guarantee of separation of powers; specifically, the presumption infringes upon the supreme court's authority to impose rules governing evidence and interferes with the executive branch's ability to fairly adjudicate workers' compensation claims. The Claimant argues the EMA presumption is impermissible as dictated by the legislative branch to the executive branch and without approval of the supreme court, notwithstanding that workers' compensation proceedings must follow the rules of evidence.
The standard of review for such a constitutional challenge is de novo . See Medina v. Gulf Coast Linen Servs. , 825 So. 2d 1018, 1020 (Fla. 1st DCA 2002).
The Florida Constitution expressly provides for separation of powers: Art. II, § 3, Fla. Const. "The [supreme court] has repeatedly held that this constitutional provision requires application of a ‘strict separation of powers doctrine ... which encompasses two fundamental prohibitions:’ " Sloban v. Fla. Bd. of Pharmacy , 982 So. 2d 26, 29 (Fla. 1st DCA 2008) (), (1) "that no branch of government may encroach on another branch's power;" and (2) "no branch may delegate its constitutionally assigned powers to another branch." Chiles v. Children A, B, C, D, E & F , 589 So. 2d 260, 266 (Fla. 1991).
The Claimant argues the EMA presumption of correctness improperly usurps the rulemaking authority of the supreme court because the supreme court has the power to enact procedural law and the Legislature to enact substantive law. DeLisle v. Crane Co. , 258 So. 3d 1219, 1224 (Fla. 2018) ; Allen v. Butterworth , 756 So. 2d 52, 59 (Fla. 2000). Furthermore, only the supreme court, not the Legislature or the Office of the Judge of Compensation Claims ("OJCC"), has the authority to promulgate procedural rules of evidence. She contends that the overreaching nature of section 440.13(9)(c) is apparent in comparison to the statutory rules of evidence per Chapter 90, Florida Statutes, which do not impose such restrictions on experts. We disagree.
The supreme court has addressed separation of powers and its rulemaking authority in the context of workers' compensation proceedings. See Amendments to the Fla. Rules of Workers' Comp. Procedure , 891 So. 2d 474 (Fla. 2004). The supreme court previously declared, "[w]e conclude that this Court...
To continue reading
Request your trial