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.

In Romero v. JB Painting and Waterproofing, Inc., Claimant’s authorized doctors put him at MMI with a 0% permanent impairment rating (PIR).  Unsatisfied with these opinions, Claimant obtained an IME who opined Claimant suffered a 5% PIR.  One month later, Claimant filed a PFB for impairment income benefits at the 5% rating.

Two months after that, Claimant noticed the E/C and the Judge that a conflict of opinions existed between the doctors.  The JCC considered this a motion and issued an order denying Claimant an opportunity to request an EMA.  (Keep in mind, Claimant did not officially request an EMA, just notified the court of the conflict.)

At the expedited final hearing, two weeks later, Claimant officially requested the Judge for an EMA.  The E/C even agreed that a conflict existed.  However, the Judge denied the request finding no conflict since the IME did not put the PIR in “proper context.”  Claimant appealed and the First DCA reversed.

The Court reasoned that the standard of whether a request for an EMA is timely is whether such a request was “reasonably prompt.”   Here, the Judge put the PFB on the expedited track and while Claimant did not officially request the EMA until trial, he did put the Judge on notice of the conflict.  Given the truncated amount of time between the PFB and the trial, the First DCA found Claimant’s notice and request to be “reasonably prompt.” 

Now, an argument can be made that Claimant knew about this conflict a whole 3 months in advance, thus raising questions about the request being “reasonably prompt.”  But, let’s face it: everyone knew this was coming.  The E/C, Claimant, and even the Judge when he read the PFB which included the IME report.  EMA hearings are becoming a theater of the obvious, especially when you consider the Judge must appoint an EMA if he discovers a conflict.

As a claims professional you should be ready for this.  As you go into mediation or trial, review the doctors opinions and if you see any conflicts, expect an EMA appointment.  This can significantly increase your litigation costs, time, and exposure with keeping the claim open even past your anticipated trial date. 

If the Claimant requests the EMA, he has to pay for it (with reimbursement from the E/C if Claimant wins at trial).  However, if the JCC recognizes the conflict on his own, then appoints an EMA, the E/C must bear the costs scheduling an EMA.  Considering EMA doctors charge significantly more than IME’s, expect your litigation costs to increase.  Be aware of any conflict in your claims. 

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