Jeffrey P. Gale, P.A. // Positive Course Correction in Florida Workers’ Compensation Law

I have railed for years against various aspects of Florida’s workers’ compensation system. One of my main targets has been section 440.13(9)(c), Florida Statutes, covered under the section of the statute dealing with “Expert Medical Advisors.” What bothered me about the law is that it excluded workers’ compensation judges, known as judges of compensation claims (JCC), from being able to perform an important job function.

Before the 2023 Florida legislative session, when there was a “disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work,” the JCC was mandated by 440.13(9)(c) to order the injured employee to be evaluated by an expert medical advisor whose opinion was presumed to be correct unless clear and convincing evidence demonstrated otherwise. Rarely did a JCC rule against the presumption.

The EMA is never the injured employee’s treating doctor. In fact, the injured worker is only examined once by the EMA. The rest of the EMA’s knowledge comes mostly from other medical records. The presumption is given greater weight, for example, than that of the treating doctor who may have been providing care for years.

America’s judicial system is founded on the principle that the trier of fact, be it judge or jury, decide contested matters based on a fair and impartial consideration of the evidence, free of arbitrary pre-conditions. The EMA law is senseless and arbitrary.

Thankfully, the 2023 Florida Legislature agreed. JCCs are no longer mandated to involve EMAs in the decision-making process. One word makes the difference. Instead of JCCs being told they “shall” appoint an EMA, the new statute replaced the word with “may.”

Since the statutory change was made, few JCCs are appointing EMAs. To their credit, JCCs would rather make the tough medical decisions than have the decisions made for them. Rightly, judges should be allowed to weigh all of the evidence, including medical evidence. The new law lets them do it.

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