Workers’ Comp Challenge Rejected

Jun 19, 2019

In a dispute about treatment of a shoulder injury, a state appeals court Tuesday rejected a constitutional challenge to part of Florida’s workers’ compensation insurance laws. 

A three-judge panel of the 1st District Court of Appeal issued a 14-page decision in a case filed by Teresita De Jesus Abreu against the Broward County School Board and Broward’s Riverland Elementary School.

While the decision did not detail the circumstances of the injury, Abreu injured her shoulder while at work in 2015.

Workers’ compensation insurance covered surgery to address a partial rotator-cuff tear. But Abreu continued to have pain and sought coverage of another shoulder surgery as recommended by an orthopedic physician who had not been authorized under the workers’ compensation coverage.

That led to a dispute about whether the additional surgery was needed, and a judge of compensation claims appointed what is known as an “expert medical adviser” to offer an opinion. The expert medical adviser said Abreu should not receive the additional surgery, and the judge denied coverage for the procedure.

Abreu’s attorney raised a series of constitutional arguments challenging part of state law that deals with expert medical advisers. Among other things, the appeal argued that state law gives too much legal weight to the opinions of expert medical advisers, violating due-process rights. But the appeals court disagreed.

“The essence of claimant’s due process argument is that the presumption of correctness (of the expert medical adviser’s opinion) is too strong --- that requiring a claimant to present clear and convincing evidence to overcome the presumption is an insurmountable task, especially in light of the restrictions on admissible testimony in workers’ compensation cases,” appeals-court Judge M. Kemmerly Thomas wrote in the decision joined fully by Chief Judge Brad Thomas.

“We cannot agree. The EMA (expert medical adviser) presumption is not irrebuttable and is permitted elsewhere in the law.” Judge Lori Rowe agreed with the result but did not sign on to the decision.