Randstad North America/ESIS Worker's Compensation Claims v. Alfred Barr

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D19-0813
_____________________________
RANDSTAD NORTH
AMERICA/ESIS WORKER’S
COMPENSATION CLAIMS,
Petitioners,
v.
ALFRED BARR,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
April 3, 2019
PER CURIAM.
In this workers’ compensation case, the Employer/Carrier
(E/C) seek a “partial quashal of an order” appointing an Expert
Medical Advisor (EMA) in which the JCC instructed the E/C to
provide the EMA with the records and deposition of Dr. Charles
Nofsinger. The E/C argued below that, because Dr. Nofsinger is
neither an authorized treating doctor, Independent Medical
Examiner (IME), or EMA, his records and opinions are
inadmissible and, thus, providing them to the EMA would cause
them prejudice.
The JCC rejected the E/C’s argument, finding that the EMA
statute, section 440.13(9)(c), Florida Statutes, provides that the
appointed expert is to have “free and complete access to the
medical records of the employee” and does not include any
restrictions or limitations on which records may be provided. The
JCC also stated he was not making any findings regarding the
admissibility of Dr. Nofsinger’s records, testimony, or opinions.
In their petition for writ of certiorari, the E/C argue that the
JCC’s interpretation of the EMA statute is incorrect because it
fails to consider that section 440.13(5)(e) limits admissible
opinions to those rendered by authorized doctors, IMEs, and EMAs
and, thus, an EMA can consider only admissible medical evidence
in formulating an opinion. The E/C also argue that allowing the
EMA to consider the purportedly inadmissible records and
testimony from Dr. Nofsinger will result in irreparable harm
because it will “be impossible to ‘unring the bell’ once Dr.
Nofsinger’s inadmissible records are turned over, examined and
considered by the EMA in formulating its opinion.” We disagree.
“It is well established that, in order to establish entitlement
to certiorari relief, the Petitioner must demonstrate both that the
order under review departs from the essential requirements of law
and that the order will cause irreparable harm which cannot be
remedied on plenary appeal.” City of Jacksonville v. Rodriguez, 851
So. 2d 280, 282 (Fla. 1st DCA 2003). “Irreparable harm is a
condition precedent to invoking certiorari jurisdiction, and so
should be considered first.” Spry v. Prof’l Employer Plans, 985 So.
2d 1187, 1188 (Fla. 1st DCA 2008). Long-standing precedent
provides that “‘the time, trouble, and expense of an unnecessary
trial are not considered ‘irreparable injury’ for these purposes.’”
Rodriguez, 851 So. 2d at 282 (quoting State v. Lozano, 616 So.2d
73, 75 (Fla. 1st DCA 1993)).
Here, regardless of whether the JCC’s decision to require
furnishing Dr. Nofsinger’s records and testimony to the EMA was
legally sound, the E/C have failed to establish the threshold
requirement of irreparable harm. First, their arguments are based
entirely on speculation; that is, they are assuming a) Dr.
Nofsinger’s records and opinions are in fact inadmissible; b) the
EMA will base any part of his opinion on those records and the
2
doctor’s testimony; c) the JCC will accept any such “tainted”
opinion; and d) the JCC will rule against the E/C on the merits of
Claimant’s claims. But even if any or all of these things occur, the
E/C can still file a direct appeal of the resulting adverse final order
and this court could then—if warranted—reverse and remand for
a new trial (and perhaps appointment of a new EMA). Because of
the E/C’s failure to overcome the primary threshold of irreparable
harm, we dismiss the petition for lack of jurisdiction.
DISMISSED.
ROBERTS, RAY, and JAY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Jay M. Levy of Jay M. Levy, P.A., Miami, and Marty E. Davis, of
Legal Solutions Group, Fort Lauderdale, for Petitioners.
Alfred Barr, pro se, Respondent.
3