Case Law Update -February 22, 2017

EMA OPINIONS/CLAIMANT’S RELIANCE ON TREATING DOCTOR’S OPINION

Hillsborough County School Board v. John Kubik, No. 1D16-1053, Fla 1st DCA (February 10, 2017)

This appeal involves two separate but equally important issues. The first issue was whether or not an Expert Medical Advisor (EMA) may render an opinion that is admissible into evidence when the opinion is on an issue that was not the subject of the original dispute which resulted in the appointment of the EMA. JCC Ellen Lorenzen excluded the opinion of the EMA about causation of the need for treatment of the claimant’s neck because that opinion was not the basis for the appointment of the EMA. The First DCA reversed the JCC’s opinion and held that she should have admitted the EMA’s opinion on causation into evidence. However, the First DCA indicated the opinion should have been admitted into evidence without the presumption of correctness that is generally given to EMA opinions. As a result, this portion of the EMA’s opinion should be given the same weight as the opinions of a treating doctor or an IME.

The second issue involved JCC Lorenzen’s reliance on the EMA’s opinion in order to deny temporary total disability benefits despite evidence that the claimant’s authorized treating doctor had taken him off work entirely and had never informed him that he could return to work. The First DCA held that an injured worker can rely on an authorized treating provider’s instruction to refrain from working even assuming retrospective or subsequent evidence/testimony that the claimant could have worked during this period. The Court held that the claimant’s reliance on his treating doctor’s instruction can support a TTD claim.

Practical Application:

The Kubik case makes it clear that all opinions of an EMA are admissible. However, opinions that were not related to the original dispute that resulted in the appointment of the EMA are not given a presumption of correctness but are given equal weight with the other physicians in the case.

The Kubik case also indicates that where a claimant’s treating doctor has told him he is unable to work, the claimant is entitled to rely on that doctor’s instruction not to work and that retrospective or subsequent evidence indicating the claimant was actually able to work will not be allowed to penalize a claimant. As a result, we can safely presume that if a treating doctor tells a claimant that he is unable to work at all, and the claimant relies on that doctor’s instructions, an award of TTD will be upheld even if the doctor later clarifies or indicates that in fact, the claimant was able to do some type of work.

Please feel free to contact any of our workers’ compensation attorneys listed below if you wish to discuss this case and its application to your claims. You may reach us at the telephone numbers or e-mail addresses listed below:

Fort Lauderdale/East Coast Office: (954) 462-4304

Walter C. Wyatt, Partner – ext. 218

wcwyatt@fla-esq.com

Robert M. Potter, III, Partner – ext. 222

rmpotter@fla-esq.com

St. Petersburg/West Coast Office: (727) 322-1739

Joseph A. Bayliss, Partner – ext. 201

jbayliss@fla-esq.com

Jerome B. Blevins, Partner – ext. 205

jblevins@fla-esq.com