Lowe’s Home Centers, Inc. v. Beekman

In September 2014, Claimant Sandra Beekman requested shoulder surgery as part of a workers’ compensation claim, but she and her employer, Lowe’s Home Centers, and its workers’ compensation insurer disagreed on the diagnosis, causal relationship, and course of treatment for the injury.  Given the disagreement between the parties’ medical experts, the Judge of Compensation Claims (“JCC”) appointed, pursuant to Section 440.13(9), Florida Statutes (2013), one Dr. Vega as the JCC’s EMA and instructed him to analyze and offer his expert opinion on the following issues: “(1) Is surgery medically necessary for the claimant’s right shoulder, and (2) If surgery is medically necessary for the claimant’s right shoulder, is the…accident the major contributing cause of the need for the surgery?”

On the same day the EMA received his instructions, the parties filed a stipulation with the court permitting an apportionment of any award based on any pre-existing condition Claimant may have had.  This was the first time the affirmative defense of a pre-existing condition had been raised, and Dr. Vega was never instructed by the JCC to render his opinion on the issue.  At his deposition more than two months later, Dr. Vega testified that Claimant’s injury was an aggravation of a pre-existing injury.

Claimant moved to exclude Dr. Vega’s testimony concerning the pre-existing injury, which the JCC granted in part.  In doing so, the JCC noted that neither party had specifically requested that Dr. Vega address the issue of apportionment and that, in any event, Dr. Vega never addressed in his testimony the apportionment between the pre-existing condition and the workplace injury.  Specifically, the deposition was the first and only time the issue of apportionment was even mentioned by Dr. Vega.  Given these facts, the JCC determined that he would not rely on any of Dr. Vega’s testimony on the apportionment issue when making a final ruling.

The First District Court of Appeals reversed and remanded on the issue of the JCC’s reliance on Dr. Vega’s apportionment testimony.  Acknowledging that Section 440.13(9)(b), Florida Statutes (2013), provides a presumption of correctness in an EMA’s opinions regarding the express medical disputes for which the EMA was appointed, the Court relied on sections 90.401 and 90.402, Florida Statutes (2013) and section 440.13(5)(e), Florida Statutes (2004), to determine that an EMA’s opinions are also admissible to assist the JCC on other issues for which the parties had expressed no disagreement or in those circumstances in which disagreement arose after the JCC’s charge of the EMA.  When an EMA’s opinion is used in this regard, the presumption of correctness does not apply and the EMA’s opinions made solely a part of the entirety of evidence by which the JCC may reach his or her conclusions.