Florida Appeals Court Finds Workers’ Comp Judge Used Flawed Logic

If doctors offer differing opinions on a work injury, a judge must appoint a third physician to help settle the matter, according to Florida’s workers’ compensation rules. And an administrative law judge must consider a contingent argument raised by an insurer, not just the initial argument, a Florida appeals court said Wednesday.

Florida’s 1^st District Court of Appeals, which is assigned all workers’ compensation appeals, found in ABM Industries vs. Maritza Valencia that the workers’ comp judge in Miami had employed some tortured logic in siding against the employer/carrier and not allowing a third doctor, known as an expert medical advisor.

The administrative law judge, Margret Kerr, had reasoned that because the insurer had not authorized the claimant’s choice of physicians, and Kerr had not formally accepted the doctor until later, no differing doctors’ opinions had existed during a hearing.

“This reasoning is flawed, as a matter of both logic and law,” appeals court Judge Susan Kelsey wrote.

The comp judge, after rejecting the carrier’s first argument, also failed to address the second, contingent argument, the court noted. The appeals court on Wednesday reversed and remanded the case to the judge of compensation claims, requiring the use of an expert medical advisor.

The case began in 2019, when the claimant was mopping an office space for ABM Industries and slipped and injured her knee. Under Florida law, the employer chooses the treating physician. The employer’s chosen doctor, Dr. Orestes Rosabal, opined that surgery was not necessary and released Valencia to return to work.

Claimants in Florida can make a one-time request for a change in treating physicians. Valencia requested another orthopedic surgeon, Dr. Edward Lazzarin. The adjuster did not respond to the request for almost two weeks, well after the five-day statutory deadline, then named a third physician. Meanwhile, Lazzarin recommended surgery for the worker’s knee.

ABM Industries, a facilities management company with operations in Miami, and ACE Insurance had made a two-pronged argument to the comp judge. The employer/carrier argued that the adjuster’s response should not be considered late – and Lazzarin should not be authorized — because the claimant had faxed the request for a change in doctors to the adjuster, instead of the insurer’s attorney, as the insurer had requested. The request was sent to a seldom-used fax number for the adjuster, and the insurer was not copied, per standard procedure, ACE’s lawyer, David Gold, told the Insurance Journal.

The employer and insurer also hedged their bets and argued that if Lazzarin was, in fact, deemed to be authorized, then an expert medical advisor must be appointed to resolve the conflict between the doctors’ opinions, as required by workers’ compensation statute in Florida.

Judge Kerr found that the carrier’s response was late and that Dr. Lazzarin’s recommendation held sway. She awarded medical and indemnity benefits for temporary partial disability. Upon the insurer’s motion for rehearing, the comp judge reasoned that Lazzarin was not actually authorized until the final judgment was entered. Thus, no conflict existed with the employer’s doctor, and there was no need to address the issue of an expert medical advisor.

“That made no sense,” Gold said. “We had worked hard to preserve that issue.”

The appeals court agreed.

“Logically, the JCC’s labor was incomplete until she addressed the E/C’s well-preserved, contingent argument that if claimant’s choice of Dr. Lazzarin was valid under the circumstances, then Dr. Lazzarin was authorized, his opinion conflicted with Dr. Rosabal’s, and an EMA was required,” the appeals judge wrote.

The court said that previous court rulings have underscored the necessity of an expert advisor in most cases when physicians’ opinions conflict. On the issue of ignoring a contingent argument by a litigant, the appeals court noted the broader implications: “Although the issue on appeal arises in a workers’ compensation case, it can happen in other contexts,” the DCA wrote.

It remains to be seen if the contingent argument tactic will now be employed more often by insurers. Gold said the circumstances for this case were fairly unique and may not apply to other litigation. On the issue of expert medical advisors, the DCA ruling “reinforces and clarifies what the law is,” Gold noted. “The law is clear: When you have conflicting doctors’ opinions, an expert medical adviser must be appointed.”

Topics Florida Legislation Workers' Compensation