Cases

In regards to a fraud defense, there is no specific time period in which a fraud defense must be asserted.   A party is not required to anticipate false testimony from the opposing party and is therefore not required to discover evidence which would refute false testimony.  The proper inquiry for the JCC is whether the employer/carrier's assertion of the fraud defense violated the claimant's right to due process.  The JCC in this case had struck the employer/carrier fraud defense as being asserted untimely.  The alleged false statements had been made to an Expert Medical Advisor.  On appeal, court determined that JCC erred in striking this defense since there was no ruling on the due process component of timelyasserting the defense.

Expert Medical Advisors can be appointed when there is conflicting medical evidence by doctors who can render opinions in workers' compensation cases.  This includes authorized treating providers.  A provider can be deemed authorized by operation of law when care is given in emergency situations and in a period during which an employer/carrier wrongfully denies medical treatment.  In order to demonstrate that the care at issue was authorized as a matter of law, however, the claimant must first convince the JCC, via admissible evidence, of certain prerequisite facts as set forth in Section 440.13(2)(c), Florida Statutes.  These facts are akin to elements of proof and as such the law is substantive as set forth in the statute in effect at the time of the claimant's date of accident. Once these facts are proven to the satisfaction of the JCC, the care from unauthorized providers become authorized and only then do the medical opinions of these providers become admissible.

In this case, the applicable version of Section 440.13(2)(c), Florida Statutes, required that the claimant prove that the care at issue was compensable and medically necessary, a specific request for treatment had been made by the claimant, and the employer/carrier had been given a reasonable time period within which to provide the treatment or care.  Since the claimant failed to establish causal relationship or medical necessity by the unauthorized doctor sought to be authorized as a matter of law, the unauthorized doctor's opinion was not admissible.  Accordingly, the JCC's appointment of an EMA based on conflicting medical opinions was improper since the supposed conflicting opinion was not admissible based on the claimant's failure to provide evidence that the unauthorized doctor became authorized as a matter of law.

Case remanded allowing claimant to obtain and present missing evidence showing authorization as a matter of law.  Claimant had relied on the JCC's favorable ruling admitting the unauthorized medical testimony.  The court pointed out that procedurally he could not appeal since the judge's ruling was wholly favorable to him.