June 2010

An Expert Medical Advisor (EMA) is a strategic litigation tool to settle conflicting opinions between authorized doctors.  See section 440.13(9).  In practice, EMA’s are used by Claimants or E/C’s who fear an adverse ruling from the JCC.  The sentiment being the underdog party has a better chance at success with an EMA physician than a judge.

A constant issue between Claimant’s and E/C’s is when is a reasonable time to request the judge for an EMA.   Both parties accuse the other of surprise when a request is made.   So, when is the right time?  According to the First DCA, the right time is pretty close to the trial date. (more…)

This is a doozy.  For as favorable as the First DCA has been towards E/C’s and the Statute of Limitations, this ruling is as unfavorable.  While I agree with the premise of having the Workers’ Compensation system be a “self-executing” one (that is, the E/C has the burden to provide benefits to Claimants), I disagree applying the reasoning to this specific fact pattern.

Anyway, shall we analyze Gauthier v Florida International University? (more…)

In my last blog entry, I wrote about whether the E/C’s right to tax costs is enforceable.  The problem being that chapter 440 provides no relief, in the form of rule nisi, for an E/C to enforce an order to tax costs against claimants.  My position was that it was unlikely that the Legislature would create a right to tax costs for E/C’s but not give them the power to enforce through rule nisi.  In fact, I wrote the following:

After all, the Florida Supreme Court held in Emma Murray that “a statute will not be construed in such a way that it renders meaningless or absurd any other statutory provision.”  By following the argument of these Claimant attorneys, the First DCA would be rendering s. 440.34(3) meaningless.

Well, it looks like I have to eat my words.  The First DCA just ruled in a case based on the theory that if the Legislature wanted to put something in the statute, then they would’ve written it in.   Let’s analyze it. (more…)