Cases

Where there is a disagreement between the opinions of healthcare providers, an Expert Medical Advisor (EMA) should be appointed. The report or testimony of the EMA is admissible into evidence and the EMA is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC.

JCC determined that the EMA was inconsistent in his opinion and therefore rejected the EMA’s opinion. However, the JCC did not make a finding as to the existence of clear and convincing evidence rebutting the presumed correctness of the EMA’s opinions.  Case remanded for further proceedings.  In distinguishing the facts in this case from the opinion in the case of Fitzgerald v. Osceola County School Board, 974 So. 2d 1161 (Fla. 1st DCA 2008) (in which the court allowed for the JCC non-acceptance of the opinion of the EMA when the EMA gave no opinion on the central issue in dispute) the court determined that the JCC in this case could reject the EMA’s opinions only where there is clear and convincing evidence that contradicts the presumed correctness of the EMA’s opinion.

Notwithstanding the provisions of Section 440.29(1), Florida Statutes (2008), the Florida Evidence Code applies to workers’ compensation proceedings. Authentication of evidence is required as a condition precedent to the admissibility of such evidence. In this case, the employer/carrier offered into evidence a functional capacity evaluation (FCE) but did not establish the authenticity of such report. Although some of the doctors relied on the results of the FCE to varying degrees, such reliance does not make the FCE report admissible for other purposes. In this case, the JCC did not consider the FCE report merely as a foundation for the opinions of some of the doctors. Rather, he assumed the statements in the FCE report to be true and used such statements as a basis to independently analyze the remainder of the evidence. Jcc erred in allowing the admissibility of the FCE for this purpose without proper authentication