Cases

Court determined that JCC erred in rejecting an EMA opinion.  JCC had appointed an EMA to resolve a conflict in medical opinions regarding the claimant's work restrictions from an industrial injury.  The EMA had rendered a report indicating that the claimant was capable of performing light duty work with certain specified functional restrictions.  The EMA testified by deposition that he would defer to the current pain management specialist as to the types and nature of pain management but stated in the deposition that his opinions as to the claimant's ability to work were in no way changed as a result of deferring to the pain management doctor.  JCC concluded that the EMA's opinions on physical work restrictions were equivacal and therefore inconclusive.  The JCC's rejection of the EMA opinions on the claimant's ability to return to work deemed by court to be error.  EMA opinions are presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC.  In this case, there was no clear and convincing evidence as to the reasons why the JCC rejected the EMA opinion.

JCC determined that the claimant was permanently and totally disabled based upon a doctor's opinion that the claimant was unable to work in at least sedentary employment within a 50-mile radius of the employee's residence, due to physical limitations, i.e., accepting the doctor's testimony that was contrary to the opinions of the EMA.  If these opinions were not accepted, the JCC ruled that the claimant was still PT based on the case of Blake v. Merck & Company, 43 So. 3d 882 and the fact that the permanent restrictions combined with vocational factors created a PT status.  In this regard, the judge accepted the claimant's vocational expert's opinions over the employer/carrier's vocational expert as to the claimant's ability to return to work.  However, the claimant's vocational expert assumed that the EMA had adopted the opinion of the pain management doctor that the claimant was precluded from sedentary work in combination with vocational factors and physical restrictions.  The claimant's vocational expert's opinion did not constitute competent and substantial evidence supporting a finding of PTD even for this alternate way of establishing PT liability. 

Court determined also that the JCC erred in rejecting the employer/carrier's vocational expert's opinion based upon personal observations of the claimant's physical limitations related to pain as a vocational factor.  Pursuant to Section 440.09(1), Florida Statutes (1994), pain is compensable only with objective relevant medical findings and any disability resulting from a compensable injury also must be established to a reasonable degree of medical certainty based on objective relevant medical findings.  Therefore, under the Florida law, physical limitation related to pain is a medical issue to be addressed only by a medical expert.