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adviser’s opinion) is too strong --- that requiring
a claimant to present clear and convincing
evidence to overcome the presumption is an
insurmountable task, especially in light of the
restrictions on admissible testimony in workers’
compensation cases,” appeals-court Judge
M. Kemmerly Thomas wrote in the decision
joined fully by Chief Judge Brad Thomas. “We
cannot agree. The EMA (expert medical adviser)
presumption is not irrebuttable and is permitted
elsewhere in the law.” Judge Lori Rowe agreed
with the result but did not sign on to the decision.
WORKERS COMP
CHALLENGE REJECTED
NSF Staff
In a dispute about treatment of a shoulder
injury, a state appeals court Tuesday rejected
a constitutional challenge to part of Florida’s
workers’ compensation insurance laws. A three-
judge panel of the 1st District Court of Appeal
issued a 14-page decision in a case filed by
Teresita De Jesus Abreu against the Broward
County School Board and Broward’s Riverland
Elementary School. While the decision did not
detail the circumstances of the injury, Abreu
injured her shoulder while at work in 2015. Workers’
compensation insurance covered surgery to
address a partial rotator-cuff tear. But Abreu
continued to have pain and sought coverage
of another shoulder surgery as recommended
by an orthopedic physician who had not been
authorized under the workers’ compensation
coverage. That led to a dispute about whether
the additional surgery was needed, and a judge
of compensation claims appointed what is
known as an “expert medical adviser” to offer an
opinion. The expert medical adviser said Abreu
should not receive the additional surgery, and
the judge denied coverage for the procedure.
Abreu’s attorney raised a series of constitutional
arguments challenging part of state law that
deals with expert medical advisers. Among other
things, the appeal argued that state law gives
too much legal weight to the opinions of expert
medical advisers, violating due-process rights.
But the appeals court disagreed. “The essence
of claimant’s due process argument is that the
presumption of correctness (of the expert medical
FLORIDA UNEMPLOYMENT
RATE TICKS DOWN
Peter Schorsch
The state’s unemployment rate hit 3.4 percent
in May, down a tenth of a point from April and
still within the realm of what economists would
call “full employment.” The dip came about
as Florida businesses created another 16,000
jobs last month for a total of 208,000 new jobs
and a job growth rate over 2.7 percent over the
past 12 months. The state’s unemployment
rate and job growth rate are also outpacing the
national averages of 3.6 percent and 1.8 percent,
respectively. “This month’s announcement shows
the confidence businesses have in our state. We
will continue to work with businesses to support
a diverse economic environment by prioritizing
disaster recovery, community development
and workforce training,” Florida Department of
Economic Opportunity head Ken Lawson said
upon the release of the new figures.
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JUNE 2019 • DITCHMEN
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