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Appeals court upholds denial of shoulder surgery

Posted On: Jun. 19, 2019 12:57 PM CST

comp shoulder

An appellate court upheld an elementary school worker’s denial for shoulder surgery, dismissing her claim that a Florida statute deferring to expert medical adviser opinions is unconstitutional.

In De Jesus Abreu v. Riverland Elementary School, a three-judge panel of the District Court of Appeals of Florida, 1st District in Tallahassee, Florida, unanimously affirmed a Judge of Compensation Claims ruling on Tuesday, upholding the medical opinion of the EMA to deny further surgeries.

Teresita de Jesus Abreu injured her shoulder at work in 2015, and her employer and the insurer accepted compensability of the accident and authorized shoulder surgery to address a partial rotator cuff tear. Her condition worsened and she requested and received an alternate orthopedic physician. In February 2016, the doctor placed her at maximum medical improvement with a 0% permanent impairment rating and her care was discontinued. She then sought care from an unauthorized orthopedic physician who recommended additional surgery.

She filed a petition for benefits and authorization of additional shoulder surgery, which was denied on the grounds that no authorized provider made the recommendation, and argued that since the physician who recommended further surgery to Ms. Abreu was not an authorized treating physician or an independent medical examiner, his opinions were not admissible. She then obtained an opinion from an IME, who found that additional surgical repair was warranted and medically necessary.

The case went before the Judge of Compensation Claims, who appointed an expert medical adviser pursuant to Florida statutes to review the medical opinions, who opined that further surgery was not recommended or necessary. The judge denied the surgery request, stating that although the testimony of Ms. Abreu’s medical examiner was “persuasive,” she was not convinced the opinions of the EMA were incorrect.

Ms. Abreu appealed, challenging the constitutionality of the Florida statutes that grant presumption of correctness to EMA opinions and the denial of surgery. The appellate court affirmed the decision.

The court noted that under Florida statutes, EMAs are intended to provide peer review or expert medical consultation, opinions and testimony to resolve disputes relating to differing opinions of health care providers, and that “the opinion of the expert medical adviser is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the judge.”

Although Ms. Abreu argued that the legislature’s enactment of the EMA presumption “violates separation of power by interfering” with the ability to fairly adjudicate workers comp claims, the court disagreed, noting that courts have to “consistently recognized and upheld the Legislature's prerogative as to evidentiary issues in workers compensation cases.”

The court also dismissed Ms. Abreu’s argument that the EMA’s opinion did not constitute competent, substantial evidence regarding the denial of her surgery, holding that the judge acted within her discretion in denying the surgery based on the presumption of the correctness of the EMA opinion.

Ms. Abreu’s attorney, Mark Zientz, said he plans to petition the Supreme Court of Florida regarding the decision. The defendant’s attorney did not immediately respond to requests for comment.