Kurt Falk v. Harris Corporation and Liberty Insurance Corporation ( 2019 )


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  •          FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D18-2176
    _____________________________
    KURT FALK,
    CORRECTED PAGES: pg 2
    Appellant,                   REMOVED THE WORD ‘THE’
    FROM LAST SENTENCE
    v.                           MAILED: April 16, 2019
    HARRIS CORPORATION and
    LIBERTY INSURANCE
    CORPORATION,
    Appellees.
    _____________________________
    On appeal from an order of the Judge of Compensation Claims.
    Robert L. Dietz, Judge.
    Date of Accident: November 12, 2011.
    April 11, 2019
    PER CURIAM.
    Kurt Falk, a worker’s compensation claimant, appeals an
    order denying permanent total disability benefits and impairment
    benefits. The Judge of Compensation Claims (JCC) based the
    denial on the opinion of an expert medical advisor (EMA) who
    deferred to another physician on the primary issues in
    disagreement. Although section 440.13(9)(c), Florida Statutes
    (2011), affords an EMA’s opinion a presumption of correctness,
    here the EMA did not offer an opinion but merely deferred to the
    opinion of another. We therefore conclude that the JCC should
    have granted Falk’s motion to strike the EMA and appoint
    another. Accordingly, we reverse the order on appeal.
    After three neurologists expressed separate opinions about
    Falk’s head injury and apparent seizure disorder, the JCC
    appointed Dr. Theofilos, a neurosurgeon, as the EMA to resolve the
    conflict. Although none of the disagreeing neurologists had
    addressed Falk’s other, less significant, injuries, Dr. Theofilos
    provided a medical opinion only as to those less significant injuries
    to Falk’s spine. Dr. Theofilos indicated that his diagnosis included
    post-concussive syndrome, but he expressly deferred to one of the
    three disagreeing neurologists—Dr. Tatum—concerning all other
    aspects of the head injury. The JCC ultimately accepted Dr.
    Theofilos’s decision to defer to Dr. Tatum as an “indirect,” but
    nevertheless appropriate, response to the disagreement about the
    head injury. The JCC then applied the presumption of correctness
    to Dr. Theofilos’s decision to defer to the opinions of Dr. Tatum,
    finding no clear and convincing evidence to do otherwise.
    Section 440.13(9)(c) mandates the appointment of an EMA
    when a disagreement exists between the opinions of two
    healthcare providers. See, e.g., Amos v. Gartner, Inc., 
    17 So. 3d 829
    ,
    831 (Fla. 1st DCA 2009). The advisor’s opinion “is presumed to be
    correct unless there is clear and convincing evidence to the
    contrary as determined by the [JCC].” § 440.13(9)(c), Fla. Stat.
    (2011). This court has described the expert medical advisor’s
    opinion as having “nearly conclusive effect.” Amos, 
    17 So. 3d at
    831-32 (citing Pierre v. Handi Van, Inc., 
    717 So. 2d 1115
    , 1117 (Fla.
    1st DCA 1998)). But here, the EMA offered no independent opinion
    regarding the head injuries or any view that Dr. Tatum’s opinion
    was correct. He simply deferred to Dr. Tatum. A blanket deference
    is not an EMA opinion for purposes of section 440.13(9)(c).
    Because Dr. Theofilos declined to express an independent opinion
    regarding the medical issues in conflict, the JCC should have
    stricken him as the EMA and appointed another. For all of these
    reasons, we reverse the order below and remand for the
    appointment of an alternate EMA and for further consideration of
    Falk’s claims.
    REVERSED and REMANDED.
    LEWIS, WINSOR, and M.K. THOMAS, JJ., concur.
    2
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    Brigitta Hawkins of Bogin, Munns & Munns, P.A., Titusville, and
    Bill McCabe of William J. McCabe, Longwood, for Appellant.
    James M. Hess of Langston Hess & Moyles, P.A., Maitland, for
    Appellees.
    3
    

Document Info

Docket Number: 18-2176

Filed Date: 4/11/2019

Precedential Status: Precedential

Modified Date: 4/16/2019