Teresita De Jesus Abreu v. Riverland Elementary School and Broward County etc.

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-2755
_____________________________
TERESITA DE JESUS ABREU,
Appellant,
v.
RIVERLAND ELEMENTARY
SCHOOL and BROWARD COUNTY
SCHOOL BOARD,
Appellees.
_____________________________
On appeal from an order of the Judge of Compensation Claims.
Geraldine B. Hogan, Judge.
Date of Accident: June 1, 2015.
June 18, 2019
M.K. THOMAS, J.
In this workers’ compensation case, the Claimant appeals the
denial of shoulder surgery, arguing that section 440.13(9)(c),
Florida Statutes, which provides a presumption of correctness to
expert medical advisor (“EMA”) opinions, is unconstitutional. The
Claimant challenges the statutory presumption as violative of
separation of powers, equal protection, and due process guarantees
of the Florida and federal constitutions. We disagree and affirm.
I. Facts
In 2015, the Claimant injured her shoulder while at work. The
Employer/Carrier (“E/C”) accepted compensability of the accident
and injury and authorized treatment with Drs. Weinberg, Meli,
and Ross. Dr. Weinberg performed an arthroscopic shoulder
surgery to address a partial rotator cuff tear. Soon afterward, the
Claimant’s condition worsened, and she requested and received an
alternate orthopedic physician, Dr. Meli. In February 2016, Dr.
Meli placed the Claimant at maximum medical improvement
(“MMI”) and assigned a zero percent permanent impairment
rating.
Thereafter, the Claimant reported persistent shoulder pain
but Dr. Meli advised he had no further recommendations. As a
result, the Claimant discontinued care with Dr. Meli and sought
care with Dr. Fletcher, an unauthorized orthopedic physician. Dr.
Fletcher recommended the additional surgery, which is now at
issue. The E/C authorized Dr. Ross, also an orthopedist, who
placed the Claimant at MMI on August 6, 2016, as she had “not
made any improvement with physical therapy, injections, or other
modalities.” Dr. Ross did not recommend further surgery because
a shoulder tear “less than halfway through might not lend itself to
surgical repair . . .” In his opinion, further surgery was not
medically necessary.
The Claimant filed a petition for benefits seeking
authorization of shoulder surgery as recommended by Dr.
Fletcher. The E/C contested the surgery on grounds that no
authorized provider(s) made the recommendation. As Dr. Fletcher
was not an authorized treating physician or independent medical
examiner (“IME”), his opinions were not admissible. 1 Accordingly,
the Claimant obtained an IME with Dr. Aparicio. Dr. Aparicio
reported his review of diagnostic studies revealed a full thickness
rotator cuff tear which he causally related to the work accident. In
1 Section 440.13(5)(e), Florida Statutes (2015), allows only the
opinions of an authorized treating physician, IME or EMA as
admissible in proceedings before a Judge of Compensation Claims.
2
his opinion, additional surgical repair was warranted and
medically necessary.
Because of the conflict in medical opinions, the Judge of
Compensation Claims (“JCC”) appointed Dr. Rozencwaig as an
EMA pursuant to section 440.13(9), Florida Statutes. Dr.
Rozencwaig opined that the Claimant did not suffer from a full
thickness rotator cuff tear and that no further surgery was
recommended or medically necessary. Neither the Claimant nor
the E/C deposed Dr. Rozencwaig. The EMA report was the sole
source of his opinions.
At merits hearing, the Claimant argued the EMA opinion
should be rejected as inconclusory, baseless, and not supported by
competent, substantial evidence (“CSE”) because the request for
surgery was based not only on the recommendation of an
unauthorized physician, Dr. Fletcher, but also on that of the
Claimant’s IME, Dr. Aparicio; that the EMA did not perform a
thorough examination; and that the EMA opinions should be
rejected because there exists clear and convincing evidence to the
contrary.
The JCC denied the request for surgery based on the opinion
of the EMA, finding that although the Claimant’s IME testimony
“is persuasive,” she was not convinced, “without hesitancy, that
the opinions of the EMA are not correct.” The Claimant moved for
rehearing and to vacate the final order, asserting that the JCC
seemingly believed, in error, that the EMA’s opinion was
irrefutable, that it was instead conclusory, and that clear and
convincing evidence existed to reject it. The Claimant moved to
reopen the evidence and allow the deposition of the EMA. The JCC
denied both motions as an attempt to relitigate issues previously
determined. The Claimant now challenges the constitutionality of
section 440.13(9)(c), the “EMA statute,” which grants a
presumption of correctness to EMA opinions and appeals the
denial of surgery. 2
2 On appeal, the Claimant explicitly raises an “as applied”
constitutional challenge. However, a “facial” challenge is also
addressed in briefing. Accordingly, we consider both.
3
II. Legal Analysis
The EMA Statute
The EMA statute provides that EMAs are to be certified “to
assist . . . the [JCC] within the advisor’s area of expertise,” and
that EMAs are intended to “provide peer review or expert medical
consultation, opinions, and testimony . . . to a [JCC] in connection
with resolving disputes relating to . . . differing opinions of health
care providers . . . .” § 440.13(9)(a)-(b), Fla. Stat. The statute
further provides:
If 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. The opinion of the expert medical advisor
is presumed to be correct unless there is clear and
convincing evidence to the contrary as determined by the
judge of compensation claims.
§ 440.13(9)(c), Fla. Stat. (2015) (emphasis added).
This Court has previously determined the EMA statute to be
substantive because it “affects . . . the entitlement to a service and
the source of payment therefor.” Snider v. Mumford, Inc., 65 So.
3d 579, 582 (Fla. 1st DCA 2011) (relying on S. Bakeries v. Cooper,
659 So. 2d 339, 341 (Fla. 1st DCA 1995)). Thus, the EMA statute
cannot be applied retroactively. Id.
An EMA is a form of IME. Section 440.13(1)(i), Florida
Statues, provides:
“Independent medical examination” means an objective
evaluation of the injured employee’s medical condition,
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including, but not limited to, impairment or work status,
performed by a physician or an expert medical advisor at
the request of a party, a judge of compensation claims, or
the department to assist in the resolution of a dispute
arising under this chapter.
This Court has acknowledged that IME provisions should not
be applied in isolation but must be considered in light of other
statutory processes. Cooper, 659 So. 2d at 340. Section
440.25(4)(d), Florida Statutes, further provides:
When there is a conflict in the medical evidence
submitted at the hearing, the provision of s. 440.13 shall
apply. The report or testimony of the expert medical
advisor shall be admitted into evidence in a proceeding
and all costs incurred in connection with such
examination and testimony may be assessed as costs in
the proceeding, subject to the provisions of s. 440.13.
Separation of Powers
First, the Claimant raises a constitutional challenge to the
presumption of correctness afforded an EMA, asserting it is a
“procedural rule” which violates the guarantee of separation of
powers; specifically, the presumption infringes upon the supreme
court’s authority to impose rules governing evidence and interferes
with the executive branch’s ability to fairly adjudicate workers’
compensation claims. The Claimant argues the EMA presumption
is impermissible as dictated by the legislative branch to the
executive branch and without approval of the supreme court,
notwithstanding that workers’ compensation proceedings must
follow the rules of evidence.
The standard of review for such a constitutional challenge is
de novo. See Medina v. Gulf Coast Linen Servs., 825 So. 2d 1018,
1020 (Fla. 1st DCA 2002).
The Florida Constitution expressly provides for separation of
powers: “The powers of the state government shall be divided into
legislative, executive and judicial branches. No person belonging
to one branch shall exercise any powers appertaining to either of
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the other branches unless expressly provided herein.” Art. II, § 3,
Fla. Const. “The [supreme court] has repeatedly held that this
constitutional provision requires application of a ‘strict separation
of powers doctrine . . . which encompasses two fundamental
prohibitions:’” Sloban v. Fla. Bd. of Pharmacy, 982 So. 2d 26, 29
(Fla. 1st DCA 2008) (quoting Fla. Dep’t of State, Div. of Elections
v. Martin, 916 So. 2d 763, 769 (Fla. 2005)), (1) “that no branch of
government may encroach on another branch’s power;” and (2) “no
branch may delegate its constitutionally assigned powers to
another branch.” Chiles v. Children A, B, C, D, E & F, 589 So. 2d
260, 266 (Fla. 1991).
The Claimant argues the EMA presumption of correctness
improperly usurps the rulemaking authority of the supreme court
because the supreme court has the power to enact procedural law
and the Legislature to enact substantive law. Delisle v. Crane Co.,
258 So. 3d 1219, 1224 (Fla. 2018); Allen v. Butterworth, 756 So. 2d
52, 59 (Fla. 2000). Furthermore, only the supreme court, not the
Legislature or the Office of the Judge of Compensation Claims
(“OJCC”), has the authority to promulgate procedural rules of
evidence. She contends that the overreaching nature of section
440.13(9)(c) is apparent in comparison to the statutory rules of
evidence per Chapter 90, Florida Statutes, which do not impose
such restrictions on experts. We disagree.
The supreme court has addressed separation of powers and its
rulemaking authority in the context of workers’ compensation
proceedings. See Amendments to the Fla. Rules of Workers’ Comp.
Procedure, 891 So. 2d 474 (Fla. 2004). The supreme court
previously declared, “[w]e conclude that this Court must be
removed from this rulemaking process, and the rules this Court
has adopted must be repealed as unauthorized under the Florida
Constitution.” Id. at 478. The supreme court specifically receded
from its prior opinions which cited article V, section 2(a), of the
Florida Constitution as a basis for its rulemaking authority
finding: its power under article V extended only to courts; that the
OJCC was not a court of this State; and that JCCs are executive
branch officials. Id. (citing Jones v. Chiles, 638 So. 2d 48, 51-52
(Fla.1994)). The supreme court further concluded:
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[B]y granting this Court the authority to promulgate
rules of workers' compensation procedure, the
Legislature unconstitutionally enlarged this Court's
jurisdiction by delegating to it powers that belong
exclusively to the executive branch of government. Were
we to conclude otherwise, the Legislature would have the
discretion to statutorily alter this Court's jurisdiction
under the Florida Constitution.
Id. at 479.
Despite the clear declaration of the supreme court in 2004
that it did not have jurisdiction to promulgate rules of workers’
compensation procedure, the OJCC may have assumed supreme
court adoption of such rules was required under section 440.29(3),
Florida Statutes (2010), which stated, “The practice and procedure
before the judges of compensation claims shall be governed by the
rules adopted by the Supreme Court, except to the extent that such
rules conflict with the provisions of this chapter.” (Emphasis
added.) However, section 440.29(3) was subsequently amended in
2011 to provide: “The practice and procedure before the judges of
compensation claims shall be governed by rules adopted by the
Office of the Judges of Compensation Claims, except to the extent
that such rules conflict with the provisions of this chapter.”
§ 440.29(3), Fla. Stat. (2011) (emphasis added).
Thus, pursuant to the supreme court and the plain language
of section 440.29(3), there exists no statutory or constitutional
grant of rulemaking authority to the supreme court in workers’
compensation proceedings. Accordingly, the Claimant’s argument
that the EMA presumption is an unconstitutional infringement on
the powers of the supreme court is rejected.
We now address the Claimant’s argument that the
Legislature’s enactment of the EMA presumption violates
separation of powers by interfering with the executive branch’s
ability to fairly adjudicate workers’ compensation claims.
According to the Claimant, section 440.45(1)(a), dictates that the
OJCC is a separate budget entity and the director of the Division
of Administrative Hearings (“DOAH”) “shall be its agency head for
all purposes including, but not limited to, rulemaking . . . and
7
establishing agency policies and procedures.” As such, she argues
that workers’ compensation proceedings fall under the domain of
the executive branch of government. In support of her argument,
the Claimant asserts Rule 60Q-6.121(1)-(5), Rules of Procedure for
Workers’ Compensation Adjudications, created by the executive
branch, does not require the JCC to reject the opinion testimony of
any expert, medical or otherwise, nor does it give any preference
to the testimony of an EMA. The Claimant asserts that the
presumption is also contrary to the post-2011 amended version of
section 440.29(3).
Notably, the Claimant does not challenge the applicability of
section 440.13(9)(c) to her date of accident which would require a
procedural or substantive review. She acknowledges that this
Court declared section 440.13(9) in its broad form to be
substantive. See Snider, 65 So. 3d at 580-82. Instead, she asserts
that subsection 440.13(9)(c), declaring the presumption of
correctness to the EMA opinion, in and of itself, constitutes an
impermissible, unconstitutional procedural component therein
which violates separation of powers. The Claimant argues that
sections 440.13(5) and (9) are “impermissible” because a single
IME cannot produce the evidence necessary to reach the standard
of contrary, clear and convincing evidence sufficient enough to
successfully challenge an EMA opinion, and as such, section
440.13(9)(c) cannot take precedence over the rules of procedure,
pertaining to evidence, that are promulgated by the supreme court.
In support, the Claimant cites to the supreme court’s recent
holding in Delisle, finding the statute imposing the Daubert 3
evidentiary standard unconstitutional. Delisle, 258 So. 3d at 1229
However, Delisle is readily distinguishable as administrative
agencies are subject to statutory regulation. 4 Palm Springs Gen.
3 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
4 We acknowledge the Florida Supreme Court’s opinion in In
Re: Amendments to the Florida Evidence Code, SC19-107, 2019 WL
2219714 (Fla. May 23, 2019), adopting the Daubert amendments
to sections 90.702 and 90.704, Florida Statutes, under its exclusive
rulemaking authority pursuant to article V, section 2(a) of the
8
Hosp. v. Cabrera, 698 So. 2d 1352, 1356 (Fla. 1st DCA 1997); Life
Care Ctrs. of Am., Inc. v. Sawgrass Care Ctr., Inc., 683 So. 2d 609,
612 (Fla. 1st DCA 1996); Paulk v. Sch. Bd. of Palm Beach Cty, 615
So. 2d 260, 262 (Fla. 1st DCA 1993) (workers’ compensation
hearings are not conducted in article V courts).
Here, the Claimant fails to recognize that procedure in a
workers’ compensation proceeding is subject to statutory
regulation, 5 and in this instance, the statutory authority provided
to the OJCC is limited “to the extent that such rules conflict with
the provisions of this chapter.” § 440.29(3), Fla. Stat.
Florida Constitution. The Court specifically noted it was not
“readdressing the correctness” of DeLisle. Id. at *1.
5 In addition to the EMA statute at issue here, Chapter 440 is
replete with examples of the Legislature dictating procedure in
workers’ compensation actions. Section 440.13(5)(b), the “IME
statute,” embodies legislative directive on IME application in a
workers’ compensation proceeding. The subsection dictates,
“[e]ach party is bound by his or her selection of an independent
medical examiner, including the selection of the independent
medical examiner in accordance with s. 440.134 and the opinions
of such independent medical examiner.” § 440.13(5)(b) Fla. Stat.
(emphasis added). A “consensus IME” is another option available
to the parties under section 440.13(5)(g). In defining the consensus
IME, the subsection dictates, “[t]he findings and conclusions of
such mutually agreed upon consensus independent medical
examination shall be binding on the parties and shall constitute
resolution of the medical dispute addressed in the independent
consensus medical examination and in any proceeding.” §
440.13(5)(g) Fla. Stat. (emphasis added). The legislative intent in
implementing the various “IME” statutes was to create a
mechanism by which an independent medical expert would offer
assistance to the parties and, specifically, “‘to the [JCC] when he
or she is faced with conflicting medical evidence from the parties’
experts.’” Lowe’s Home Ctrs., Inc. v. Beekman, 187 So. 3d 318, 321
(Fla. 1st DCA 2016) (quoting Broward Children’s Ctr., Inc. v. Hall,
859 So. 2d 623, 626 (Fla. 1st DCA 2003)). The EMA statute is no
different.
9
The heightened burden of persuasion created by section
440.13(9)(c) does not violate the constitution because it falls within
the purview of the Legislature regarding evidentiary issues in
workers’ compensation cases. Cortina v. State, Dep’t of HRS, 901
So. 2d 273, 274 (Fla. 1st DCA 2005) (holding section 440.13(5)(e)’s
limit on admissible medical witnesses to authorized treating IME
or EMA does not violate separation of powers because “this court
has consistently recognized and upheld the Legislature’s
prerogative as to evidentiary issues in workers’ compensation
cases”); see also Home Depot v. Turner, 820 So. 2d 1075 (Fla. 1st
DCA 2002) (upholding statute setting forth burdens of proof for
claimant to satisfy in seeking entitlement to permanent total
disability benefits); Rucker v. City of Ocala, 684 So. 2d 836 (Fla.
1st DCA 1996) (holding claimant’s due process rights were not
violated by statute excluding testimony by unauthorized treating
physician, in part because claimant had other options, such as
seeking an IME).
For these reasons, we find that section 440.13(9)(c), does not
violate the separation of powers guarantee.
Procedural Due Process
Second, the Claimant challenges section 440.13(9)(c), as an
unconstitutional denial of procedural due process in violation of
Article 1, section 9, of the Florida Constitution, which provides
“[n]o person shall be deprived of life, liberty or property without
due process of law . . .” and the Fourteenth Amendment of the U.S.
Constitution, which provides that “[no] State shall . . . deprive any
person of life, liberty, or property . . . without due process of law.”
“‘Procedural due process rights derive from a property interest in
which the individual has a legitimate claim.’” Rucker, 684 So. 2d
at 840 (quoting Metro. Dade Cty. v. Sokolowski, 439 So. 2d 932, 934
(Fla. 3d DCA 1983)).
We acknowledge that an injured employee’s right to receive
workers’ compensation benefits qualifies as such a property
interest. Ayala v. Fla. Farm Bureau Cas. Ins. Co., 543 So. 2d 204,
206 (Fla. 1989). Accordingly, an injured employee’s right to receive
workers’ compensation benefits, as a property right, must be
protected by procedural safeguards including notice and an
10
opportunity to be heard. Hernandez v. Paris Indus. Main., 39 So.
3d 466 (Fla. 1st DCA 2010); Dep’t of Law Enforcement v. Real
Prop., 588 So. 2d 957, 964 (Fla. 1991). The opportunity to be heard
must be meaningful, full and fair, and not merely colorable or
illusive. Sokolowski, 439 So. 2d at 934. “[T]he formalities requisite
in judicial proceedings are not necessary in order to meet the due
process requirements in the administrative process.” Hadley v.
Dep’t of Admin., 411 So. 2d 184, 187 (Fla. 1982).
Under the EMA statute, unless the JCC determines that clear
and convincing evidence exists to the contrary, the EMA opinion
prevails to resolve the medical conflict. § 440.13(9)(c), Fla. Stat.
Here, the JCC, within her discretion, accepted the opinion of the
EMA and denied surgery.
The essence of Claimant’s due process argument is that the
presumption of correctness 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. We cannot agree. The EMA presumption is not irrebuttable
and is permitted elsewhere in the law (in civil and criminal
contexts), as well as throughout Chapter 440, Florida Statutes.
See § 440.093(2), Fla. Stat. (requiring mental or nervous injuries
to be demonstrated by clear and convincing medical evidence);
§ 440.09(1) (in occupational disease and repetitive exposure cases
both causation and sufficient exposure to support causation must
be proven by clear and convincing evidence); § 440.02(1), Fla. Stat.
(exposure to toxic substance is not an injury by accident arising
out of employment unless there is clear and convincing evidence
establishing that exposure to the specific substance involved, at
the levels to which the employee was exposed, can cause the
injury); § 440.19(4), Fla. Stat. (“If a claimant contends that an
employer or its carrier is estopped from raising a statute of
limitations defense and the carrier demonstrates that it has
provided notice to the employee in accordance with s. 440.185 and
that the employer has posted notice in accordance with s. 440.055,
the employee must demonstrate estoppel by clear and convincing
evidence.”); § 440.09(7)(c), Fla. Stat. (“If the injured worker refuses
to submit to a drug test, it shall be presumed in the absence of
clear and convincing evidence to the contrary that the injury was
11
occasioned primarily by the influence of drugs.”); § 440.11(1)(b),
Fla. Stat. (workers’ compensation is the exclusive remedy except
when an employee proves “by clear and convincing evidence” that
the employer committed an intentional tort).
Further, the heightened burden of persuasion does not
completely deny the right to present evidence because it still
permits notice and opportunity to be heard. See Rucker, 684 So. 2d
at 841. In Rucker, a claimant argued that his due process rights
were violated by the IME statute (section 440.13(5)(e)). This Court
held the statute did not violate the right to procedural due process
because the claimant “was not completely denied the right to
present evidence” and “less stringent formalities are needed to
satisfy due process concerns” in administrative proceedings such
as workers’ compensation proceedings. Id. at 841. Likewise, the
restrictions imposed by the EMA statute do not deny the Claimant
the right to present evidence.
Because the Claimant in this case was able to present
evidence in the form of her IME, no violation of due process
occurred as she was afforded the opportunity to be heard and, thus,
was not denied access to court. The Claimant made the strategic
decision not to depose the EMA before the merits hearing, despite
denial of her motion to strike the EMA opinion. This certainly
diminishes her argument that section 440.13(9)(c) essentially
forecloses any reasonable means, such as a deposition of the EMA,
by which an EMA opinion may be challenged.
Under these facts, due process requirements were satisfied.
Accordingly, we reject the contention that section 440.13(9)(c)
violates the Claimant’s constitutional right to procedural due
process under the Florida or federal constitutions.
Equal protection
Third, the Claimant contends that the presumption of
correctness in section 440.13(9)(c), is unconstitutional as a
violation of her equal protection rights guaranteed by Article I of
the Florida Constitution and the Fourteenth Amendment which
provides that “[n]o State shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” The EMA statute
12
applies equally to claimants and E/Cs alike. Here, the Claimant
has failed to pinpoint a classification created by the presumption
which runs afoul of equal protection. Sasso v. Ram Prop. Mgmt.,
431 So. 2d 204 (Fla. 1st DCA 1983), decision approved, 452 So. 2d
932 (Fla. 1984), appeal dismissed, 469 U.S. 1030 (1984).
EMA Opinion
Lastly, the Claimant contends the final order must be
reversed because: 1) the EMA’s opinion does not constitute CSE
regarding the denial of surgery; and 2) clear and convincing
evidence contrary to the EMA’s opinion exists so the EMA opinion
may not be afforded a presumption of correctness. The EMA opined
that the Claimant is not a candidate for further surgery. His
opinions constitute competent, substantial evidence. The JCC
acted within her discretion in denying the surgery based on the
presumption of correctness of the EMA opinion as she found no
clear and convincing evidence to the contrary.
III. Conclusion
The presumption of correctness attributed to an EMA
pursuant to section 440.13(9)(c), is not an unconstitutional
violation of separation of powers, due process, or equal protection
guarantees. Enactment of the presumption was not an
impermissible encroachment upon the supreme court’s
rulemaking authority nor that of the executive branch. The
presumption does not frustrate the Claimant from introducing
medical testimony beneficial to her case, is not irrebuttable, and
applies equally to all parties. Accordingly, we uphold the statute
facially and as applied in this case. Because CSE supports the
JCC’s denial of shoulder surgery, we affirm.
AFFIRMED.
B.L. THOMAS, C.J., concurs; ROWE, J., concurs in result only.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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_____________________________
Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for
Appellant.
Laurence F. Leavy of Laurence Leavy and Associates, P.A., Fort
Lauderdale, for Appellees.
14