Expert Medical Advisors Could Be an Injustice to the Florida Worker’s Compensation System

Dan E Smith - Worker's Compensation Attorney

As a passionate worker’s compensation attorney, I am dedicated to fighting for justice for people injured on the job. The intent of worker’s comp insurance, provided by employers to their employees, is to ensure that any person injured in the performance of their job duties is expediently compensated for medical expenses or lost wages suffered due to the injury. According to FL §440.015, a worker’s comp claim should be a fairly straightforward process. It is frustrating to me, as an ardent believer in corporate responsibility and social justice, to see anyone – but especially one of my clients – become entangled in complications unnecessarily injected into this process. Let’s talk specifically about Expert Medical Advisors (EMAs) for a minute.

Let’s go step-by-step through a worst-case hypothetical scenario for a possible worker’s comp claim.

First, someone is injured at work. The injured person makes the report to the employer and is referred to the employer’s worker’s compensation doctor for necessary medical attention. This doctor, under the assumption of being paid by the worker’s compensation insurance, will use their medical knowledge to recommend the best course of action he or she sees that the injuries require. In this hypothetical, let’s imagine that this person’s injury is severe enough that the doctor recommends an expensive medical procedure or long term treatment.

At this point, the insurance adjuster – who may have no more medical training than a high school graduate – may make an arbitrary decision to deny the injured person’s worker’s compensation claim. In the worst of situations he or she may do so because they simply do not see the procedure as “necessary,” but in the best of cases he or she may have consulted with a doctor in order to make this decision. Never mind that this doctor may have only reviewed the case on paper and never met with the client, or may be located out of state and not licensed to practice medicine in Florida. The doctor may not even be in the same specialty field as the treatment recommended. Maybe the worker’s compensation doctor who physically examined the injured person has recommended an orthopedic surgery and the doctor reviewing the case for the insurance adjuster is a gynecologist; it doesn’t matter as long as they have graduated from medical school and have a license to practice medicine somewhere they are allowed to report back to the insurance adjuster with their professional medical opinion.

At this point, since the claim has been wrongfully denied, an injured person can still file a Petition for Benefits. Either party can hire an Independent Medical Examiner to make a judgment on the person’s health and necessity of the suggested medical procedure. Typically, the injured person cannot afford to hire this person, so after a long wait, the insurance carrier may do so. In an ideal situation, this medical examiner will see that the procedure is medically necessary, even if it is expensive, and will advise the parties and adjuster of his or her decision. But, unfortunately there is nothing really “independent” about this medical examiner, as they have been hired by the insurance company. The independent examiner can also give a bogus reason why the medical course of treatment is not necessary. He or she might say that the injury existed before the person was injured at work, or that it has been caused by a degenerative physical state and cannot be attributed to the at-work injury. Any number of reasons can be given in order to further bury the injured person’s worker’s comp claim.

Unfortunately, the situation in place prevents the judge from being a judge. The EMA lawprevents the Justice from taking into evidence additional clarifying statements from the injured person about the state of their health and cause of the injury, or from considering prior medical records and history. Instead, EMA law specifies that at this point an Expert Medical Advisor (EMA) be called in to make the final decision about the recommended course of treatment for the injured person. Typically, the EMA will only be required to examine the patient once before making his or her final determination on the necessity of the recommended medical procedure. If the EMA confers with the independent medical examiner’s previous assessment, and reports to the court that the procedure is unnecessary, this is the final determination of the client’s worker’s compensation claim. Denial of the claim in its entirety. There are options to appeal this final determination, but they are limited.

So, sometimes it doesn’t matter what the original worker’s compensation doctor advises. It doesn’t matter what evidence the injured person has to support their claim, or to invalidate the opinions of the medical examiners. It doesn’t matter that the judge may be sympathetic to the injured person’s plight, or that the medical examiners are not intimately familiar with the injured person’s case, the injured person’s hands can be tied by the final word issued by the Expert Medical Advisor.

Of course, I understand the argument that this system has been put in place to prevent fraudulent worker’s compensation claims. I understand the argument that it also prevents judges from considering faulty or outdated medical knowledge, or the misinformed medical testimonies of attorneys, as supporting evidence for worker’s compensation claims which may be unjustified. I understand that this law exists so that each person who has been denied in a worker’s comp claim can have their case evaluated by a court-appointed expert. Of course, I believe that each injured person is entitled to have their claim examined by an expert upon its denial, and of course I do not believe that judges should be expected to be experts in both the vast areas of legal and medical knowledge. But, I do believe judges should be allowed to be judges.  It simply makes me furious when this existing system allows insurance companies to deny claims in order to pay more attention to their profit margin and effects on their bottom line than the quality of coverage they provide for real-world people, with real-world suffering.

Florida legislators should have their attention called to this situation. It is a legislative injustice to disallow the judicial system from providing recompense to injured people based on arbitrary or under-informed so-called “experts.” Maybe it’s because I have a heart which is sensitive to the struggles of the underdog,  maybe it’s because I am afraid anytime I see people swallowed by cracks in a system which is intended to protect them, or maybe it’s because I simply can’t stand to see injustice occur to the citizens of my home state. Whatever the reason for my personal frustration, I am reminded of the eternal truth in the immortal words of Dr. Martin Luther King, Jr.: “Injustice anywhere is a threat to justice everywhere.”

 

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