Cases

JCC denied the claimant's Motion for the Appointment of an EMA because the motion filed by the claimant was untimely and there was no disagreement between medical opinions because one opinion had an insufficient foundation.  On appeal, decision of JCC reversed.

One of the conflicting medical opinions was based on an independent medical examination that was completed only on a records review and not by an individual evaluation by the doctor of the claimant.  Court determined that an IME based on paper review only constituted competent and substantial evidence to be considered by the JCC. The paper reviewed IME had a solid foundation.  Even though the doctor did not review the two most recent medical notes from the authorized doctor, that did not make this IME doctor's review "incomplete" on the facts in this case.  The records that were not reviewed by the IME doctor did not concern the issue under review.

There are no statutory deadlines for filing EMA requests. The only deadline is found in caselaw and that is that the request for an EMA should not be "unreasonably delayed" once the party is aware of a disagreement.  A request for the appointment of an IME is not the only way to bring the need for an EMA to the JCC's attention. The JCC can sua sponte appoint an EMA.  A party that requests an EMA must pay for it; in contrast, if a JCC sui sponte appoints an EMA, the cost falls on the employer/carrier.  Accordingly, a claimant, to preserve his appellate rights, may give notice of the need for an EMA without actually requesting an EMA by motion thus either ensuring the appointment of an EMA or preserving the error. See Banuchi v. Department of Corrections, 122 So.3d 999(Fla. 1st DCA 2013).

In this case, the claimant's attorney filed two "Banuchi notices" before filing a motion requesting an EMA.  Court determined on appeal that there was not an unreasonable delay in filing the motion for the appointment of an EMA in this instance. The court ruled that the first Banuchi notice cured any timeliness problem because the purpose of an EMA request is not to give the opposing litigant notice but to inform the JCC of her mandatory duty early enough not to disrupt the orderly proceedings.

Under the facts in this case, the claimant's EMA request was timely and the disagreement between the doctors concerning the extent of the claimant's permanent physical impairment rating required the appointment of an EMA. The JCC erred in not appointing an EMA.