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Florida First DCA rules that judge erred in worker’s compensation caseby not appointing a successor expert medical advisor (EMA) after striking the appointed EMA’s opinions

On October 6, 2021, in Shelton v. Pasco County Board of County Commissioners/Commercial Risk Management, Inc., No. 1D20-3511, the Florida First DCA ruled in a Worker’s Compensation case that the Judge of Compensation Claims (JCC) erred by not appointing a successor expert medical advisor (EMA) after striking the appointed EMA’s opinions based on the WC claimant’s Daubert objection. The JCC had appointed the EMA because of conflicts in the medical evidence regarding the causal relationship of the claimant’s heart condition to his employment, the date of maximum medical improvement, and the correct impairment rating. Section 440.13(9)(c), Florida Statutes (2017), mandates the appointment of an EMA when a conflict exists in the medicalevidence. The First DCA noted that the JCC’s striking the EMA’s testimony and report did not resolve the conflict and a successor EMA should have been appointed. The First DCA cited Falk v. Harris Corp., 267 So. 3d 578, 579 (Fla. 1st DCA 2019) (because EMA offered no independent opinion regarding the medical issues in conflict, the JCC should have stricken him and appointed an alternate EMA). On a separate issue, the First DCA ruled that the JCC was bound by a stipulation between the parties regarding the compensability of the heart condition and erred by setting it aside and finding the heart condition non-compensable. The First DCA noted that it previously held in Sullivan v. NuCO2, LLC/Broadspire, 308 So. 3d 659, 664 (Fla. 1st DCA 2020), that a joint stipulation of the parties is binding on the JCC.

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