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Arlotta v city of West Palm Beach

A March 26, 2012 1DCA decision that reversed JCC D'Ambrosio. This case continues to show the importance that the 1DCA is putting on Expert Medical Advisors (EMA). Judges of Compensation Claims have less and less control In a case where there are conflicting medical opinions.

In this case, there was a conflicting medical opinion and Judge of Compensation Claims appointed an EMA to address “the issues of 1) whether the Claimant has gynecomastia, 2) the cause of the gynecomastia, and 3) what treatment is recommended.”

However, before the claimant was seen by the EMA physician, the claimant had an unauthorized surgery. The claimant wanted to give copies of the unauthorized medical records to the EMA.

The Employer/Carrier filed a motion to dismiss the Claimant's claims arguing that Claimant’s unilateral decision to undergo surgery prevented the EMA from answering the questions put to him and that the E/C had been prejudiced in its ability to defend the claims.

The JCC found that the Claimant, by undergoing surgery, altered his condition to such a degree that an evaluation by the EMA would be futile. Further, the JCC found that, because the only treatment for gynecomastia was an excision and that the EMA would not be able to determine whether Claimant indeed had gynecomastia.

The 1DCA held that even though the JCC was frustrated with the Claimant’s conduct, that frustration could not override mandatory statutory provisions. The 1DCA held that the JCC abused their discretion by canceling the EMA evaluation.

click to go to 1DCA opinion

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