Treaters, IMEs, and EMAs – Oh My!

Written by Neil A. Ambekar, ESQ

Since 1994, §440.13(9)(c), Fla. Stat., has allowed Judges of Compensation Claims (“JCCs”) to appoint an expert medical advisor (“EMA”) to assist the JCC when there is a conflict in the medical opinions. Up to May 25, 2023, the statute provided that “If there is disagreement in the opinions of the health care providers… [the JCC] 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.” Understanding the EMA rule requires an understanding of the rest of the statute and case law. What is a “health care provider”? This term is defined in §440.13(1)(g), Fla. Stat., as “a physician or any recognized practitioner licensed to provide skilled services pursuant to a prescription or under the supervision or direction of a physician.

The term “health care provider” includes a health care facility.” In other words, the term does not only include physicians, though most EMA appointments are the result of disagreements between physicians. It can extend other professionals such as psychologists, chiropractors, physician assistants, nurse practitioners, nurses, and so on. The disagreeing providers may be treating physicians or IMEs, and they do not have to be in the same specialty. Keeton v. Kentucky Fried Chicken, 74 So.3d 1125 (Fla. 1st DCA 2011); AA Gutter Cleaning, Inc. v. Cesario, 49 So. 3d 281 (Fla. 1st DCA 2010). However, not all health care providers are qualified to “disagree” about all issues. For example, a psychologist cannot testify about an impairment rating or medical restrictions for physical injuries. Hernandez v. Geo Group, Inc., 46 So.3d 1123 (2010); AT & T Communications v. Rosso, 217 So. 3d 1183 (Fla. 1st DCA 2017).

Who pays for the EMA?

Under §440.13(9)(f), Fla. Stat., the answer is simple in theory: the party requesting the EMA pays. In practice, it is nearly always the employer/carrier because of the provision for appointment “upon the JCC’s own motion.” It seems likely this was intended for situations where the JCC was uncomfortable deciding the issue without additional medical testimony – perhaps because none of the existing opinions were clearly stated, or because the issue was in a field of medicine in which the JCC had no experience. However, in Banuchi v. Dep't of Corr., 122 So. 3d 999 (Fla. 1st DCA 2013), the First District Court of Appeal held that the JCC was required to appoint an EMA whenever a party brought a medical dispute to the court’s attention – even if that party did not actually request an EMA. In Banuchi, the employee filed a “notice of conflict” stating that there was a disagreement in medical opinions, and asking the JCC to appointment an EMA on his own motion. Previously, the established mechanism was for the requesting party to file a motion asking the JCC to appoint an EMA, and the JCC declined to appoint an EMA because no motion was filed. However, the appellate court held that the “notice” was sufficient to trigger the JCC’s obligation to appoint an EMA on his own motion. §440.13(9)(f), Fla. Stat., makes the carrier responsible for the cost of an EMA appointed on the JCC’s own motion, so Banuchi effectively made the carrier responsible for the cost of an EMA in every case.

What disagreements require appointment of an EMA?

Well, all of them really. The statute specifically provides for EMAs in cases where “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…” This language has been read broadly to permit an EMA on virtually every issue that medical providers are competent to testify about. For example, though not specifically mentioned in the statute, an EMA can be appointed to address permanent work restrictions. Brandywine Convalescent Care v. Ragoobir, 124 So. 3d 344 (Fla. 1st DCA 2013).

Who is qualified to serve as an EMA?

§440.13(9)(a), Fla. Stat., requires the Division of Workers’ Compensation to maintain a list of certified experts. The Division currently limits application to board-certified physicians under Fla. Admin. Code R. 69L-30.004. If there is no appropriate provider on the certified list, the statute allows the JCC to appoint any “qualified provider,” with such qualifications left up to the JCC.

How is an EMA selected?

Under the statute, the parties can agree on the EMA, but if the parties are unable to agree the JCC decides. As parties rarely agree on the EMA, the JCC’s decision-making power is significant. However, methodology is lacking. Some JCCs literally draw a name from a hat. Others roll a die. Some go through the doctors on the local list in alphabetical order, appointing each in turn as the cases come before them. Some pick the same doctor in every case because they trust the doctor to serve as an honest broker. In many cases, there may be only one doctor who is qualified to serve, or only one willing (which is quite possibly the major impetus for the recent change in the law).

What is the deadline for requesting an EMA?

“The EMA statute does not set a deadline for EMA requests.” Steinberg v. City of Tallahassee, 186 So. 3d 61, 65 (Fla. 1st DCA 2016). However, the request should be made with “reasonable promptness” once the conflict is known. AT&T Wireless v. Frazier, 871 So. 2d 939 (Fla. 1st DCA 2004).

What is the effect of the EMA’s opinion?

The EMA’s opinion is “presumptively correct.” So if the EMA’s opinion is favorable to one party, that party is not required to prove that the EMA is correct. Rather, the other party must prove the EMA is wrong by clear and convincing evidence, a high bar. If the other party fails to do so, the JCC is required to accept the EMA’s opinion even if the JCC personally disagrees. The First District Court of Appeal has described the opinions of an EMA physician as “nearly conclusive.” Cromartie v. City of St. Petersburg, 882 So. 2d 439, 440 (Fla. 1st DCA 2004). It should be noted that the presumption of correctness only applies to the dispute for which the EMA is appointed. Opinions of the EMA which are beyond that issue are treated like any other medical testimony. Lowe's Home Centers, Inc. v. Beekman, 187 So. 3d 318 (Fla. 1st DCA 2016).

So what changed, and why?

In May 2023, the legislature amended the statute to provide that the JCC may order the employee to be examined by an EMA, instead of “shall.” In other words, a JCC is no longer required to appoint an EMA in any case even if a medical dispute exists, but has discretion to determine whether an EMA is appropriate. The change was made suddenly and with minimal discussion, but are two likely reasons for it.

First, the Division of Workers’ Compensation hasn’t put much effort into the expert medical advisor certification list (https://apps.fldfs.com/provider/). There is an application process for new experts, but the Division has put almost no effort into recruiting experts, and certainly hasn’t kept up with existing experts retiring, moving their practices, and so on.

This has led over time to a very short list of EMA options in specialties other than orthopedics, with only a couple of doctors in some fields. For example, there are only six board-certified foot and ankle surgeons on the EMA list, and four of them are in the Orlando area. There are five cardiologists. There are three neurosurgeons, three neurologists and three psychiatrists. There is one urologist and one plastic surgeon. These experts must serve a state of nearly 22 million people. Recall that for an EMA to be appointed in the first place, there must be a conflict in the medical opinions of two other physicians, making the lists even shorter in some cases where a conflict of interest would arise. But things are even worse in other fields – there is not a single obstetrician, gynecologist, ophthalmologist, internist, chiropractor, ENT, dermatologist or dentist certified as an EMA anywhere in the state.

This drastic shortage of providers has caused massive delays in litigation and has surely frustrated JCCs and parties alike. I had a trial in one case delayed from March 2019 to January 2020 because the JCC was unable to find a doctor willing to serve as an EMA (in a field where there was no expert on the certification list). While this is a somewhat extreme case, similar delays occur statewide every day.

The second reason for the law change is probably the Banuchi decision discussed above. An EMA is permitted to charge up to $300.00 per hour for up to eight hours per Fla. Admin. Code R. 69L-30.008(5). In practice, every EMA charges the full $2,400.00 whether they perform eight hours of work or not. EMAs are permitted to request to petition the JCC for a fee of more than $2,400.00 in extreme cases, but fortunately none of them seem to be aware of this. But in any case, this charge does not include the EMA’s deposition, which will be at least $200.00 and often approaches $1,000.00 after “record review” charges (and this does not include the court reporting fees). Because Banuchi effectively made the carrier responsible for the EMA charges in every case, it essentially increased the carrier’s exposure by $3,000.00 in every litigated case. EMA charges are taxable costs which should theoretically be repaid by the employee if the carrier wins the case, but there is no meaningful enforcement mechanism in most instances. So expense reserves have been artificially inflated by $3,000.00 or so to account for this exposure.

That is not to say that a carrier will never have to pay for an unwanted EMA again. There will still be medical questions which JCCs are unable to decide, for which they elect to exercise discretion. Some JCCs will no doubt continue appointing EMAs in most cases because they are comfortable with the existing process. And the Banuchi case will still require carriers to pay for the EMA regardless of who is requesting it. However, the change should bring down overall costs in litigated claims for carriers moving forward.