1ST DCA ADVANCES INDUSTRY’S INTERESTS ON TWO IMPORTANT W.C. FRONTS: MCC and EMA
Claimant suffered severe degenerative conditions in his shoulder(s). After a minor fall he petitioned for right shoulder replacement on grounds that while he may have been mildly symptomatic (and ‘self-medicating’) prior to the accident, he was not receiving medical treatment, and, could possibly have gone without shoulder replacement had there been no fall, which now caused new, immobilizing impairment (or so he alleged).
The judge appointed an EMA who reported: the MCC of the need for shoulder replacement was the preexisting condition: there was no objective medical evidence of new injury.
However; the JCC overrode the EMA opinion and awarded shoulder replacement using, not in so many words but essentially, the ‘straw that broke the camel’s back’ analogy: i.e., he was able to work, and might not have needed surgery, but for the fall. The JCC also stressed there had been no “medical treatment” in the time prior to the fall.
On appeal MKRS challenged both the JCC’s disregard of the EMA, and, misapplication of MCC.
EMA: The court has often in the past ruled it will not second-guess JCC’s who override (presumptively correct) EMA opinions. It accomplished this by treating the question of whether “clear and convincing evidence” exists to override such opinions as “competent substantial evidence” (CSE) questions, giving a JCC broader leeway and making it harder for an appealing party to reverse.
Without announcing any policy change, the court simply applied a legal (‘de novo’) test, not a “CSE” test, in determining “clear and convincing evidence” wasn’t present and then it reversed — not for further proceedings — but with instructions to dismiss the claim. In short, the holding is a strong signal that overriding an EMA opinion is now more likely to come under appellate scrutiny — on authority of this case.
Where industry has made any “substantial” (meaning as opposed to ‘insubstantial’) contribution to a personal, pre-existing risk of harm, it should pay, subject to apportionment where applicable. However, given the elimination of the Special Disability Trust Fund, it is important that industry also have a “relief valve” for problems it has not caused — and the substituted MCC and apportionment filters from unwarranted exposure were becoming clogged in the ebb and flow of court interpretations. They may function better after Owen.