                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

MARIA SUAREZ,                          NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Petitioner,                      DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D14-3495

STEWARD ENTERPRISES AND
TRAVELERS INS. CO.,

      Respondents.

___________________________/


Opinion filed May 12, 2015.

Petition for Writ of Certiorari.

Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Petitioner.

David S. Gold and David B. Stauber of Litchfield Cavo, LLP, Fort Lauderdale, for
Respondents.


PER CURIAM.

      In this workers’ compensation matter, presented through a petition for writ of

certiorari, Claimant argues that the Judge of Compensation Claims (JCC) departed

from the essential requirements of law by denying her request to limit the deposition

fee of the expert medical advisor (EMA) to $200 per hour, the amount referenced in

section 440.13(10), Florida Statutes (2011), and that error represents material harm

that cannot be remedied on appeal. Because we agree, we quash the JCC’s order.
      After Claimant scheduled EMA Dr. Rozencwaig’s deposition, she was

advised that the doctor’s fee was $750 per hour and that the deposition would not go

forward unless the doctor received an advance payment of $750. The explanation

provided by Dr. Rozencwaig’s office staff was that the doctor believed he was not

limited to $200 per hour because he was the appointed EMA.

      Following a hearing on Claimant’s motion to determine the fee, the JCC

declined to determine the fee, concluding that giving a deposition is not a service

contemplated by either section 440.13(9), Florida Statutes (2011), the section

addressing EMAs, or by Florida Administrative Code Rule 69L-30, also addressing

EMAs. Further, the JCC concluded that because “the EMA is not a mere health care

provider, but an expert,” the fee limitation in section 440.13(10) did not apply.

      When requesting review of an order via a petition for writ of certiorari, the

petitioning party is required to demonstrate that the challenged order “(1) constitutes

a departure from the essential requirements of law; (2) would cause material harm;

and (3) could not be adequately remedied on appeal.” Torres v. Costco Wholesale

Corp., 115 So. 3d 1111, 1112 (Fla. 1st DCA 2013) (quoting Diestel v. Winfrey

Plumbing, Inc., 668 So. 2d 283, 284 (Fla. 1st DCA 1996)). “Irreparable harm is a

condition precedent to invoking certiorari jurisdiction, and should be considered

first.” Taylor v. TGI Friday’s, Inc., 16 So. 3d 312, 313 (Fla. 1st DCA 2009).

      Turning first to the question of whether Claimant was irreparably harmed, we

                                          2
note that the JCC gave Claimant the option of paying the doctor $750 per hour or

whatever fee she might negotiate, or forego the deposition. Both alternatives result

in irreparable harm. If Claimant pays an amount in excess of what the statute

permits, she will not be able to recover the overage as a taxable cost, even if she

ultimately prevails in the case. See Marton v. Florida Hosp. Ormond Beach, 98 So.

3d 754, 757 (Fla. 1st DCA 2012) (reversing JCC’s award of cost reimbursement to

employer/carrier for amounts paid for depositions in excess of amount permitted by

section 440.13(10)). If Claimant foregoes the deposition because of the

impermissible cost, Claimant will be without means to either contest the EMA’s

report below, or demonstrate harmful error on appeal. Thus, under either scenario,

Claimant established she would be irreparably harmed.

      We next turn to the question of whether the JCC departed from the essential

requirements of law. As a preliminary matter, we note that a JCC has jurisdiction to

resolve issues regarding discovery, along with disputes regarding statutorily-

regulated litigation charges pertaining thereto. See Hancock v. Suwannee Cnty. Sch.

Bd., 149 So. 3d 1188, 1191 (Fla. 1st DCA 2014) (reversing and remanding order

because JCC concluded he lacked jurisdiction to address reasonableness of

independent medical examiner’s in-advance charge to allow exam to be video-

taped). Contrary to the JCC’s belief that depositions of EMAs are not contemplated

by the law, a review of both the statute and case law demonstrates otherwise.

                                         3
Although the service agreement signed by the EMA in this case does not address

depositions, that does not end the analysis. Upon review of multiple statutory

subsections, it is clear that an EMA is a health care provider, and the JCC

acknowledged as much—“the EMA is not a mere health care provider, but an

expert”—and, as such, is limited to a witness fee of $200 per hour. Section

440.13(9)(a) requires that “the qualifications, training, impartiality, and commitment

of the health care provider” be considered in identifying physicians to serve as

EMAs. Sections 440.13(9)(b) and section 440.25(4)(d) anticipate that EMAs may

provide “testimony” to the JCC. In addition, section 440.25(4)(d) goes on to provide

that “the testimony of the [EMA] shall be admitted into evidence . . . and all costs

incurred in connection with such . . . testimony may be assessed as costs in the

proceeding, subject to the provisions of s. 440.13.” The section that is at the heart

of Claimant’s petition, section 440.13(10), provides that “[a]ny health care provider

who gives a deposition shall be allowed a witness fee. The amount charged by the

witness may not exceed $200 per hour.” When these provisions are read together,

we conclude that Dr. Rozencwaig is a health care provider; thus, his fee for

deposition testimony is limited to $200 per hour as required by the plain language

of section 440.13(10). Accordingly, nothing in sections 440.13 or 440.25 supports

the JCC’s conclusion.

      Case law further supports this view. In Marton, 98 So. 3d at 757, we limited

                                          4
authorized treating physicians and independent medical examiners, two of the three

categories of individuals who can provide admissible medical opinion testimony per

section 440.13(5)(e), to $200 per hour in payment for their testimony. EMAs

represent the third category. In Taylor, 16 So. 3d at 313, this court stated that “the

statute and the rules of procedure allow Claimant to take the EMA’s deposition in

the same manner and for the same purposes as provided in the Florida Rules of Civil

Procedure. See Fla. Admin. Code R. 60-Q-6.114(1) & (2); see also § 440.30, Fla.

Stat. (2005).” In Pierre v. Handi Van, Inc., 717 So. 2d 1115, 1116-17 n.3 (Fla. 1st

DCA 1998), this court noted that independent medical examiners and EMAs “[fell]

within the general definition of health care providers.” Because the EMA is a health

care provider, the doctor is limited to $200 per hour for his deposition.

   Accordingly, we conclude that the JCC departed from the essential requirements

of law, in a manner not remediable on appeal, when he denied Claimant’s request

that Dr. Rozencwaig’s deposition fee be limited to that permitted by section

440.13(10). The JCC’s order is QUASHED, and the matter REMANDED for entry

of an order setting the deposition fee at $200 per hour.

MAKAR and BILBREY, JJ., CONCUR; RAY, J., SPECIALLY CONCURRING.




                                          5
RAY, J., specially concurring.

      I agree with the majority’s analysis on the substantive legal issue regarding

the proper hourly rate for an EMA’s deposition testimony. I write separately,

however, to explain my reasons for concluding that extraordinary relief of certiorari

review is warranted in this case.

      It is well settled that certiorari is not a tool to right all wrongs committed

during the discovery process, nor is it available simply because an interlocutory

order imposes additional expense, inconvenience, or the costs of unnecessary

litigation. See Haridopolos v. Citizens for Strong Sch., Inc., 81 So. 3d 465, 468 n.2

(Fla. 1st DCA 2011) (“The caselaw is clear that ‘[c]ertiorari is not designed to serve

as a writ of expediency and should not be granted merely to relieve the petitioners

seeking the writ from the expense and inconvenience of a trial.’” (quoting Whiteside

v. Johnson, 351 So. 2d 759, 760 (Fla. 2d DCA 1977))). At first glance, this case

appears to be about nothing more than money, an issue that can normally be

remedied on plenary appeal.

      Indeed, if Claimant were to pay the prohibited fee required by the order under

review, take the EMA’s deposition, and ultimately prevail at trial, then that expense

could be awarded as a taxable cost incurred by Claimant because Claimant would

have the right, if not the obligation, to follow the order setting the fees and should

not be prejudiced by such adherence. See Miller Elec. Co. v. Oursler, 113 So. 3d

                                          6
1004, 1009-10 (Fla. 1st DCA 2013) (granting exceptional appellate remedy based

on Claimant’s reliance on JCC’s interlocutory order entered in error). Similarly, if

Claimant decided to forego the EMA’s deposition based on the prohibitive nature of

the fee and thereafter lost her case because she was unable to properly cross-examine

the central witness who was appointed by the JCC to resolve the dispute, this Court

could provide a remedy on plenary appeal by reversing and remanding for a new

hearing to permit the deposition to go forward in accordance with the requirements

of law. See Miami Dade Cnty. Sch. Bd. v. Smith, 116 So. 3d 511, 514 (Fla. 1st DCA

2013) (reversing and remanding final order of JCC where party was precluded from

deposing critical witness, stating “[i]nasmuch as the Employer was denied the

opportunity to engage the legal means of testing the reliability of the opinions of this

physician—whose opinions are critical to factual issues in dispute—it simply cannot

be said that the deprivation visited on the Employer here is harmless”). In either of

the two foregoing circumstances, the remedies available from an appeal of a final

order could cure any harm created by the order under review, assuming the record

supports the predicate facts warranting such relief.

      But, here, Claimant—having not yet taken the EMA’s deposition—is at a

cross-roads and is understandably unable to predict the ultimate outcome of her case.

Importantly, Claimant wishes to exercise her constitutional right to due process by

cross-examining a critical witness in her case, regardless of whether she ultimately

                                           7
wins or loses. See Smith, 116 So. 3d at 514 (explaining “[a]mong a litigant’s most

important due process rights is the right to call witnesses”) (citations omitted).

Claimant’s insistence on her right to depose the EMA under the requirements of law,

whether she wins or loses, gives rise to a third scenario that, for all practical

purposes, simply cannot be remedied on appeal. That is, if Claimant pays the $750

hourly deposition fee, * deposes the EMA, and ultimately loses her case, she will be

without an appellate remedy because the improperly charged fee—which here is

expressly prohibited by section 440.13(10) and more than three times the amount

permitted by statute—could not be taxed as a cost since Claimant would not be the

prevailing party. See § 440.34(3), Fla. Stat. Further, because the EMA is not a party

to this proceeding, we could not order the EMA, as a non-party, to disgorge or remit

the fees which were collected under the imprimatur of the JCC who appointed him.

      None of the three scenarios explained above have yet to play out, but each one

is possible. Because the prohibited fee is the very subject matter of the challenged

order, as opposed to being a collateral consequence or the inconvenient byproduct

of an ordinary discovery order (for which certiorari review would not lie), and

because the Legislature has instructed this Court to interpret chapter 440 as creating


* To be certain, the irreparable nature of the harm at issue would be more
pronounced had the EMA requested, for instance, $75,000 per hour rather than $750,
but given that the fee at issue here is more than threefold the maximum fee allowable
under law, the legal principles used to determine whether the harm is the sort
warranting certiorari relief should be the same.
                                            8
an efficient, non-burdensome, self-executing system, see section 440.015, I conclude

that Claimant has established irreparable harm sufficient for certiorari review, even

if barely so.




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