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In Guerra v. C.A. Lindman, Inc., 39 Fla. L. Weekly D. 1510a (Fla. 1st DCA July 21, 2014), the claimant appealed an order of the Judge of Compensation Claims ("JCC") denying a petition for benefits for authorization of cervical surgery.

The claimant had suffered a compensable work accident that resulted in a herniated disc at C5-6. The employer/carrier initially authorized orthopedist, Dr. Schechter, who opined that the claimant did not need surgery. The claimant subsequently exercised his one-time change and the employer/carrier then named orthopedist, Dr. Greenberg. Dr. Greenberg recommended a partial discectomy surgery.

Thereafter, the claimant filed a petition for benefits seeking authorization of the surgery. In response, the employer/carrier requested the appointment of an expert medical advisor (EMA) to resolve the disagreement in medical opinions between Dr. Schechter and Dr. Greenberg regarding the medical necessity of the surgery. Neurosurgeon, Dr. Pagan, was appointed as the EMA and opined that surgery was not necessary. However, he testified that if the claimant's conditioned worsened, surgery may be appropriate. The claimant then withdrew his petition for benefits.

Dr. Greenberg subsequently declined to continue treating the claimant. The employer/carrier then authorized orthopedist, Dr. Montesano, who eventually opined that the claimant's condition had worsened. As a result, Dr. Montesano recommended a C5-6 anterior cervical discectomy and fusion surgery. He indicated that the surgery should be authorized as soon as possible because the claimant was developing nerve damage and he feared that the condition could progress to a point of irreversibility.

The claimant then filed a new petition for benefits seeking authorization of the surgery recommended by Dr. Montesano. In defense, the employer/carrier deposed Dr. Schechter and Dr. Pagan, who testified that their opinions had not changed although they had not seen the claimant recently or reviewed any updated medical records from Dr. Montesano. Neither doctor expressed disagreement with the opinions of Dr. Montesano, and neither doctor was asked to address Dr. Montesano's opinions.

During the final hearing, the JCC perceived a possible dispute in the medical opinions and questioned as to whether an EMA should be appointed. Both parties opposed appointment of an EMA. The claimant argued there was no disagreement in the medical opinions and that Dr. Montesano's opinion -- that the claimant's condition had worsened -- was uncontroverted. The employer/carrier argued that the question, as to whether the claimant required surgery, had already been addressed by Dr. Pagan, the EMA previously appointed.

The JCC decided to appoint EMA, Dr. Theofilos. Dr. Theofilos opined that the surgery was not medically necessary. The JCC relied on Dr. Theofilos' opinions and denied the claimant's surgery request. The claimant then appealed.

On appeal, the 1st DCA held that the JCC had erred in failing to recognize that Dr. Montesano's uncontroverted opinion was that the claimant's medical condition had worsened since Dr. Schechter, Dr. Greenberg and Dr. Pagan had formed their opinions. Because the employer/carrier had failed to counter Dr. Montesano's uncontroverted testimony, there was no disagreement in the medical opinions and an EMA should not have been appointed. Thus, the JCC's decision was reversed and remanded.



 

This summary was prepared by James Favero of our firm.


James Favero

 

 



39 Fla. L. Weekly D1510a

 

Workers' compensation -- Medical benefits -- Judge of compensation claims erred in appointing expert medical advisor and in relying on EMA's opinion as basis for claim for cervical surgery where there was no disagreement in the opinions of health care providers regarding claimant's current need for discectomy and fusion given unrefuted worsening of his injury

NOE GUERRA, Appellant, v. C.A. LINDMAN, INC. and ARGONAUT INSURANCE COMPANY, Appellees. 1st District. Case No. 1D13-5988. Opinion filed July 21, 2014. An appeal from an order of the Judge of Compensation Claims. Daniel A. Lewis, Judge. Date of Accident: August 31, 2010. Counsel: Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant. Brian C. Dowling of the Workers' Compensation Trial Group, P.A., Orlando, for Appellees.

(PER CURIAM.) In this workers' compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying Claimant's petition for benefits including, relevant to this appeal, a claim for cervical surgery or, in the alternative, cervical facet injections. We reverse because the JCC erroneously appointed and relied on an expert medical advisor (EMA).

Claimant suffered a compensable accident on August 31, 2010, and was diagnosed with a C5-6 herniated disk, resulting in the authorization of orthopedic spine specialist Dr. Schechter. Dr. Schechter did not think Claimant was a candidate for surgery. Claimant obtained a "one-time change" of physician, as he was entitled to do under the Workers' Compensation Law, and orthopedic surgeon Dr. Greenberg was appointed. Dr. Greenberg diagnosed disk herniations at C3-4 and C5-6, and recommended a partial discectomy (surgery). Claimant then filed a petition for benefits seeking that surgery. In response, the Employer/Carrier (E/C) sought appointment of an expert medical advisor (EMA) to resolve the disagreement in medical opinions regarding Claimant's need for the partial discectomy recommended by Dr. Greenberg.

Neurosurgeon Dr. Pagan was appointed to serve as an EMA, and he opined Claimant was not then a surgical candidate; he later testified that if Claimant's condition worsened, surgery may be appropriate. After Dr. Pagan rendered his EMA report in June 2011, Claimant withdrew his petition, and proceeded with conservative care. Because Dr. Greenberg declined to see Claimant given the situation, the E/C authorized orthopedic surgeon Dr. Montesano. Eventually Dr. Montesano opined that Claimant's condition was getting progressively worse. Dr. Montesano opined that Claimant requires a C5-6 anterior cervical discectomy and fusion "as soon as possible because he is developing nerve damage or neurological deficit," that if the weakness "continues to get worse it may become irreversible," and that if surgery is not authorized, Claimant should have cervical facet injections.

Based on Dr. Montesano's opinion, Claimant filed a new petition for benefits seeking the treatment recommended by Dr. Montesano. In defending the new claim, the E/C deposed Drs. Schechter and Pagan again. Both indicated that their opinions had not changed, but explained that they had not seen Claimant or reviewed any records past May 2011. Notably, Dr. Schechter expressly declined to opine on Claimant's condition in 2012 or June 2013 for those reasons. Neither doctor expressed any disagreement with the medical opinions of Dr. Montesano that served as the foundation for the pending petition for surgery, nor was either doctor asked to address Dr. Montesano's opinions.

During the hearing on the new petition for benefits, the JCC perceived a possible dispute in the medical opinions relating to Claimant's need for cervical surgery, and raised the question of whether an EMA should be appointed. Both parties opposed the appointment of an EMA with respect to the new petition for benefits. Claimant argued (1) there was no disagreement in the medical opinions because the opinions of Drs. Schechter and Pagan were two years old ("stale") and (2) Dr. Montesano's opinion that Claimant's condition had worsened and now required surgery was uncontroverted. The E/C argued that the question of whether Claimant requires surgery had already been addressed by Dr. Pagan, the EMA appointed to resolve the disagreement in medical opinion regarding the prior petition for benefits. Notwithstanding the parties' objections to the appointment of an EMA, the JCC, without identifying a specific disagreement in the medical opinions, appointed an EMA, neurosurgeon Dr. Theofilos. The JCC charged the EMA with answering three questions, including "[w]hether the anterior cervical discectomy and fusion surgery as recommended by Dr. Montesano is reasonable and medically necessary for the claimant." The order appointing Dr. Theofilos as EMA was not challenged by appeal or petition for certiorari review.*

Dr. Theofilos opined that surgery was not medically necessary "due to the numerous Waddell's signs he is exhibiting, [and] his lack of anatomic findings on examination that would correlate with a C5-6 disc pathology." Claimant moved to strike the testimony from Dr. Theofilos, and objected to admission of Dr. Theofilos's report into evidence. The JCC denied the motion and overruled the objection. The JCC relied on Dr. Theofilos's opinions and, by order entered June 24, 2013, denied Claimant's petition for benefits. This was error.

Simply put, the JCC erred in failing to recognize that the legal dispute before him was Claimant's current need for surgery pursuant to Dr. Montesano's recommendation, based on Dr. Montesano's uncontroverted opinion that Claimant's medical condition was materially worse than before. The E/C had an opportunity to counter this uncontroverted testimony in order to demonstrate some level of disagreement in medical opinions, but made the strategic decision to rely on Drs. Schechter and Pagan even though, by their own admission, these physicians were unaware of evidence regarding a worsening in Claimant's condition. Because the opinions of Drs. Schechter and Pagan do not constitute evidence of a "disagreement in the opinions of the health care providers" regarding the legal issue in dispute, i.e., Claimant's current need for discectomy and fusion given the unrefuted worsening of his injury, the JCC erred in appointing an EMA. See § 440.13(9)(c), Fla. Stat. (2010).

REVERSED and REMANDED for entry of an order, in light of this opinion, based on the evidence already before the JCC with the exception of evidence from Dr. Theofilos. (THOMAS, ROWE, and MAKAR, JJ., CONCUR.)

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*An interlocutory order appointing an EMA may be reviewed on plenary appeal. See Taylor v. TGI Friday's, Inc., 16 So. 3d 312, 313 (Fla. 1st DCA 2009). Hence, there is no merit to the E/C's argument that Claimant waived the right to contest the appointment of an EMA by waiting for the entry of a final order.







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