Rosa Estela Rubio v. Gymboree Corporation and Gallagher Bassett etc.

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ROSA ESTELA RUBIO, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-2685
GYMBOREE CORPORATION
AND GALLAGHER BASSETT
SERVICES, INC.,
Respondents.
___________________________/
Opinion filed October 20, 2015.
Petition for Writ of Certiorari.
Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Petitioner.
H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., Coral Gables, for
Respondents.
PER CURIAM.
In her petition for writ of certiorari, Claimant seeks to quash an order of the
Judge of Compensation Claims (JCC) that appointed an expert medical advisor
(EMA) under section 440.13(9), Florida Statutes (2013), to resolve a disagreement
in medical opinions procured by the parties. Because the order would result in harm
that cannot be remedied on plenary appeal, see Taylor v. Columbia/HCA Doctors
Hosp. of Sarasota, 746 So. 2d 1244, 1245 (Fla. 1st DCA 1999), we may address
Claimant’s argument that it departs from the essential requirements of law.
We first address the argument that because the Employer/Carrier filed its
motion for an EMA only eight days before final hearing, the JCC should not have
appointed an EMA. Notably, Claimant does not contest that there existed a material
disagreement in medical opinions, or argue that the appointment of an EMA would
be legally improper if timely done. Rather, Claimant restricts her argument to the
timeliness of the JCC’s appointment of the EMA.
This court has held that, absent a timely request, a party cannot raise as error
on appeal the JCC’s failure to appoint an EMA. See, e.g., Walsdorf Sheet Metal
Works, Inc. v. Gonzalez, 719 So. 2d 355 (Fla. 1st DCA 1998). The basis for this
holding is that it would adversely impact the administration of justice to permit a
party to ignore her obligation to diligently protect her interests, and wait until after
an adverse order has been rendered to raise the issue for the first time. See Arvida
River Hills Country Club v. Van Slyke, 728 So. 2d 1213, 1214 (Fla. 1st DCA 1999).
But no case interpreting the EMA provisions in chapter 440, nor any statutory text
brought to our attention, prevents a JCC from appointing an EMA merely because a
request is not made timely. On the contrary, even absent a request from a party, a
JCC can–and under the plain terms of sections 440.13(9)(c) and 440.25(4)(d) must
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—appoint an EMA if a disagreement in medical opinions exists. To strike the
appointment of an EMA in this case, even if based on an untimely request, would be
in contravention of the plain language of sections 440.13(9)(c) and 440.25(4)(d) and
the legislative intent that JCCs have independent authority to appoint EMAs where
medical opinions materially differ. Here, the JCC could have, in effect, passed on
the E/C’s motion for the appointment of an EMA, but he was not required to do so
as a matter of law. Accordingly, Claimant has not demonstrated that the JCC
departed from the essential requirements of law by appointing an EMA in the
circumstances presented.
Claimant next argues that the JCC’s appointment of an EMA violates the 210-
day deadline for holding a hearing set by section 440.25(4)(d), Florida Statutes
(2013). The order extending the hearing beyond the 210-day deadline was not timely
challenged by Claimant, who offers no meaningful remedy to the existing situation.
Finally, the statutory deadline for holding a hearing is not “inflexible nor inviolable”
and a JCC may grant a continuance for good cause shown. See Banks v. Allegiant
Sec., 122 So. 3d 983, 985 (Fla. 1st DCA 2013) (reversing JCC’s denial of
continuance based on JCC’s failure to consider statutory standards for such
relief); see also Brown v. Pumpian, 504 So. 2d 481, 482 (Fla. 1st DCA 1987)
(concluding time deadlines for holding hearings are “directory,” not mandatory).
Because Claimant has failed to demonstrate that the JCC departed from the essential
requirements of law, the petition for writ of certiorari is DENIED on the merits.
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LEWIS, MAKAR, and WINOKUR, JJ., CONCUR.
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