Williams v. Healthcare Cosmetology Services, Inc

Williams v. Healthcare Cosmetology Services, Inc.

OJCC Case No. 20-013230RLD (FL.Off.Judge.Comp.Cl. November 17, 2021)

KK TAKEAWAY:

There can be no basis for appointment of an Expert Medical Advisor (EMA) where a party fails to list witnesses/exhibits it is relying upon to create a medical conflict that satisfies §440.13(9).

BACKGROUND:

On November 17, 2021, JCC Dietz issued a Final Compensation Order with regard to the Claimant’s request for continued medical care for her back injury sustained in the work accident. By way of background, the Claimant worked for the Insured as a nail tech who did hair and nails. On the date of accident, the Claimant was working sitting in a chair preparing for her next customer who was scheduled for a manicure and pedicure. The customer got off of an electric scooter to sit down in a chair, but her attendant turned the scooter on causing it to jump forward and strike the Claimant. The scooter was then turned off and pulled away from the Claimant, but the attendant again turned it on and it jumped forward, landing on the Claimant and pinning her to the chair.

After about one (1) year of treatment, the Employer/Carrier denied the Claimant’s request for continued treatment based upon the Claimant

being at Maximum Medical Improvement (MMI) and that she no longer required care medically necessary for any condition related to the work accident.

On October 21, 2021, the Employer/Carrier filed a Motion to Appoint Expert Medical Advisor (EMA) based upon disputes in testimony between Dr. Brian Ziegler, the authorized treating physician, and the Employer/Carrier IME Dr. Steven Weber. The initial evaluation of whether the statutory requirements for appointment of an EMA is based in Florida Statute §440.13(9). This section states that “[i]f there is 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 department may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor.”

JCC Dietz found that there was no basis for a disagreement requiring an appointment of an EMA, as Dr. Weber was not listed as a witness and his IME Report was not listed as an exhibit. Based upon the non-compliance with the Pretrial Stipulation, there was an absence of a disagreement based upon admissible evidence, and as such, there was no basis for appointment of an EMA.

The Employer/Carrier made an Ore Tenus Motion to Amend the Pretrial Stipulation at the Final Hearing to add Dr. Weber’s deposition, CV, and medical records claiming that there was no prejudice to the Claimant. The Claimant argued that there would be prejudice if a medical dispute were to be found based upon untimely filed evidence, as it would delay a ruling on the Petition for Benefits. Despite the Claimant’s attorney attending the deposition of Dr. Weber, JCC Dietz found prejudice to the Claimant, denied the Employer/Carrier’s motion, and ultimately ruled in the Claimant’s favor allowing her to seek postMMI palliative care.