A Florida Appellate Court found that a Florida Judge of Compensation Claims had made an error when they determined a claimant had reached maximum medical improvement (MMI) based on an Expert Medical Advisor’s (EMA) answer to one hypothetical question that came up in a cross-examination. The EMA had determined in their report that the claimant had not yet reached MMI because of their need for future surgery.

The EMA’s report stated that he recommended electrodiagnostic studies and additional surgery for the claimant, and based on those recommendations he answered “no” to the question of whether the claimant had reached MMI. At the time of his deposition the claimant had had electrodiagnostic studies and according to the results of those studies, the EMA’s opinion that they should have surgery was confirmed. The EMA was asked a leading question by the employer and carrier’s attorney and he agreed that the claimant would be at MMI in May 2016 if he did not have surgery.

Based on his answer to this hypothetical question, the JCC found that the claimant should not be entitled to temporary partial disability benefits because the EMA gave an opinion that he reached MMI as of May 2016.

There are “black-letter rules” which presume correct the opinion of the EMA, and the appellate court acknowledged they do not apply when the EMA fails to offer a definitive opinion on the contested issue. However, nothing in those laws allow a Judge of Compensation Claims to disregard the presumed correctness of an unequivocal EMA opinion without presenting evidence to contradict that presumed correctness. In this case it seemed that the JCC weighed other testimony and medical evidence without providing convincing evidence that the EMA’s opinion was wrong. The employer had never established underlying facts to support this hypothetical question so his testimony could be considered nothing more than speculation and shouldn’t form the basis for the JCC’s decision.

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