         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D18-2176
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KURT FALK,
                                 CORRECTED PAGES: pg 2
    Appellant,                   REMOVED THE WORD ‘THE’
                                 FROM LAST SENTENCE
    v.                           MAILED: April 16, 2019

HARRIS CORPORATION and
LIBERTY INSURANCE
CORPORATION,

    Appellees.
                 _____________________________


On appeal from an order of the Judge of Compensation Claims.
Robert L. Dietz, Judge.

Date of Accident: November 12, 2011.

                         April 11, 2019


PER CURIAM.

    Kurt Falk, a worker’s compensation claimant, appeals an
order denying permanent total disability benefits and impairment
benefits. The Judge of Compensation Claims (JCC) based the
denial on the opinion of an expert medical advisor (EMA) who
deferred to another physician on the primary issues in
disagreement. Although section 440.13(9)(c), Florida Statutes
(2011), affords an EMA’s opinion a presumption of correctness,
here the EMA did not offer an opinion but merely deferred to the
opinion of another. We therefore conclude that the JCC should
have granted Falk’s motion to strike the EMA and appoint
another. Accordingly, we reverse the order on appeal.

     After three neurologists expressed separate opinions about
Falk’s head injury and apparent seizure disorder, the JCC
appointed Dr. Theofilos, a neurosurgeon, as the EMA to resolve the
conflict. Although none of the disagreeing neurologists had
addressed Falk’s other, less significant, injuries, Dr. Theofilos
provided a medical opinion only as to those less significant injuries
to Falk’s spine. Dr. Theofilos indicated that his diagnosis included
post-concussive syndrome, but he expressly deferred to one of the
three disagreeing neurologists—Dr. Tatum—concerning all other
aspects of the head injury. The JCC ultimately accepted Dr.
Theofilos’s decision to defer to Dr. Tatum as an “indirect,” but
nevertheless appropriate, response to the disagreement about the
head injury. The JCC then applied the presumption of correctness
to Dr. Theofilos’s decision to defer to the opinions of Dr. Tatum,
finding no clear and convincing evidence to do otherwise.

     Section 440.13(9)(c) mandates the appointment of an EMA
when a disagreement exists between the opinions of two
healthcare providers. See, e.g., Amos v. Gartner, Inc., 17 So. 3d 829,
831 (Fla. 1st DCA 2009). The advisor’s opinion “is presumed to be
correct unless there is clear and convincing evidence to the
contrary as determined by the [JCC].” § 440.13(9)(c), Fla. Stat.
(2011). This court has described the expert medical advisor’s
opinion as having “nearly conclusive effect.” Amos, 17 So. 3d at
831-32 (citing Pierre v. Handi Van, Inc., 717 So. 2d 1115, 1117 (Fla.
1st DCA 1998)). But here, the EMA offered no independent opinion
regarding the head injuries or any view that Dr. Tatum’s opinion
was correct. He simply deferred to Dr. Tatum. A blanket deference
is not an EMA opinion for purposes of section 440.13(9)(c).
Because Dr. Theofilos declined to express an independent opinion
regarding the medical issues in conflict, the JCC should have
stricken him as the EMA and appointed another. For all of these
reasons, we reverse the order below and remand for the
appointment of an alternate EMA and for further consideration of
Falk’s claims.

    REVERSED and REMANDED.

LEWIS, WINSOR, and M.K. THOMAS, JJ., concur.
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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Brigitta Hawkins of Bogin, Munns & Munns, P.A., Titusville, and
Bill McCabe of William J. McCabe, Longwood, for Appellant.

James M. Hess of Langston Hess & Moyles, P.A., Maitland, for
Appellees.




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