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

ROSA ESTELA RUBIO,                    NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Petitioner,                     DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-2685

GYMBOREE CORPORATION
AND GALLAGHER BASSETT
SERVICES, INC.,

      Respondents.

___________________________/


Opinion filed October 20, 2015.

Petition for Writ of Certiorari.

Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Petitioner.

H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., Coral Gables, for
Respondents.




PER CURIAM.


      In her petition for writ of certiorari, Claimant seeks to quash an order of the

Judge of Compensation Claims (JCC) that appointed an expert medical advisor

(EMA) under section 440.13(9), Florida Statutes (2013), to resolve a disagreement
in medical opinions procured by the parties. Because the order would result in harm

that cannot be remedied on plenary appeal, see Taylor v. Columbia/HCA Doctors

Hosp. of Sarasota, 746 So. 2d 1244, 1245 (Fla. 1st DCA 1999), we may address

Claimant’s argument that it departs from the essential requirements of law.

      We first address the argument that because the Employer/Carrier filed its

motion for an EMA only eight days before final hearing, the JCC should not have

appointed an EMA. Notably, Claimant does not contest that there existed a material

disagreement in medical opinions, or argue that the appointment of an EMA would

be legally improper if timely done. Rather, Claimant restricts her argument to the

timeliness of the JCC’s appointment of the EMA.

      This court has held that, absent a timely request, a party cannot raise as error

on appeal the JCC’s failure to appoint an EMA. See, e.g., Walsdorf Sheet Metal

Works, Inc. v. Gonzalez, 719 So. 2d 355 (Fla. 1st DCA 1998). The basis for this

holding is that it would adversely impact the administration of justice to permit a

party to ignore her obligation to diligently protect her interests, and wait until after

an adverse order has been rendered to raise the issue for the first time. See Arvida

River Hills Country Club v. Van Slyke, 728 So. 2d 1213, 1214 (Fla. 1st DCA 1999).

But no case interpreting the EMA provisions in chapter 440, nor any statutory text

brought to our attention, prevents a JCC from appointing an EMA merely because a

request is not made timely. On the contrary, even absent a request from a party, a

JCC can–and under the plain terms of sections 440.13(9)(c) and 440.25(4)(d) must
                                           2
—appoint an EMA if a disagreement in medical opinions exists. To strike the

appointment of an EMA in this case, even if based on an untimely request, would be

in contravention of the plain language of sections 440.13(9)(c) and 440.25(4)(d) and

the legislative intent that JCCs have independent authority to appoint EMAs where

medical opinions materially differ. Here, the JCC could have, in effect, passed on

the E/C’s motion for the appointment of an EMA, but he was not required to do so

as a matter of law. Accordingly, Claimant has not demonstrated that the JCC

departed from the essential requirements of law by appointing an EMA in the

circumstances presented.

      Claimant next argues that the JCC’s appointment of an EMA violates the 210-

day deadline for holding a hearing set by section 440.25(4)(d), Florida Statutes

(2013). The order extending the hearing beyond the 210-day deadline was not timely

challenged by Claimant, who offers no meaningful remedy to the existing situation.

Finally, the statutory deadline for holding a hearing is not “inflexible nor inviolable”

and a JCC may grant a continuance for good cause shown. See Banks v. Allegiant

Sec., 122 So. 3d 983, 985 (Fla. 1st DCA 2013) (reversing JCC’s denial of

continuance based on JCC’s failure to consider statutory standards for such

relief); see also Brown v. Pumpian, 504 So. 2d 481, 482 (Fla. 1st DCA 1987)

(concluding time deadlines for holding hearings are “directory,” not mandatory).

Because Claimant has failed to demonstrate that the JCC departed from the essential

requirements of law, the petition for writ of certiorari is DENIED on the merits.
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LEWIS, MAKAR, and WINOKUR, JJ., CONCUR.




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