HCBA Lawyer Magazine Vol. 29, No. 5 | Page 70

THE NEED FOR KNOWLEDGEABLE, IMPARTIAL MEDICAL EXPERTS Workersʼ Compensation Section 23;89 =.:635:#=2596<7<=)=.6659:<#=;6=1;0= We are left with the growing problem of trying to find specialists in certain fields because of how the workers compensation system is designed and the minimum fee schedule. T wo recent cases highlight problems facing workers’ compensation practitioners. In the first case, Marine Max and Seabright Insurance v. Charles Blair, No. 1D17-3926 (Fla. 1 DCA, March 7, 2019), Charles Blair had multiple surgeries by a hernia specialist who refused to accept the workers compensation rate for his services and insisted on higher payments. After several years of payments at higher rates, the employer changed carriers, and the new carrier refused to authorize this doctor. The First District Court of Appeals held that the doctor could not be deauthorized for refusing to agree to accept the workers compensation fee schedule. But it was a hollow victory because the First DCA also held that the Judge of Compensation Claims could not order the carrier to pay fees at a higher rate. The dissent points out the incomplete nature of the ruling. We are left with the growing problem of trying to find specialists in certain fields because of how the workers compensation system is designed and the minimum fee schedule. The second decision is Day v. Johns Hopkins Health System and Paul Wheeler, M.D., 903 F. 3d 766 (4th Cir. 2018). In that case, Dr. Wheeler, working through Johns Hopkins Health System, ran an expert review service over several years in federal black lung cases. In doing so, Dr. Wheeler allegedly charged inflated fees and provided the coal industry with false and fraudulent testimony in black lung cases to support denial of federal workers’ compensation benefits to miners with black lung disease. Dr. Wheeler’s scheme was uncovered by a journalistic investigative series published by the Center of Public Integrity, including “Breathless and Burdened: Dying from Black Lung, Buried by Law and Medicine.” Chris Hamby, et al., Johns Hopkins Medical Unit Rarely Finds Black Lung, Helping Coal Industry Defeat Miner’s Clams (October 30, 2013, updated January 13, 2015). The federal agency that reviews black lung cases issued a directive to “not credit Dr. Wheeler’s negative readings for pneumoconiosis in the absence of persuasive evidence either challenging the CPI and ABC conclusions or otherwise rehabilitating Dr. Wheeler’s readings.” U.S. Dept. of Labor, Office of Workers’ Compensation Programs, Weighing Chest X-ray Evidence that Includes a Negative Reading by Dr. Paul Wheeler, BLBA Bulletin, No. 14-09 (June 2, 2014). Many miners were denied benefits based on Wheeler’s reports and died without receiving benefits. Even so, dismissal of the lawsuit on their behalf was affirmed by the U.S. Fourth Circuit of Appeals on the basis that witnesses are entitled to absolute immunity for their testimony. This rule has already been questioned by commentators, 1 but courts have yet to consider the immunity to reduce the weight of party experts who give testimony contrary to the treating physicians, even though treating physicians can be sued for medical malpractice if their opinions and treatment recommendations are wrong. 766.101 et seq., Fla. Stat. 1 http://yalejreg.com/nc/day-v- johns-hopkins-hard-cases-make-bad- law-or-good-law. Author: Anthony V. Cortese – Attorney At Law GET INVOLVED IN A SECTION OR COMMITTEE! JOIN TODAY IN YOUR MEMBER PROFILE AT HILLSBAR.COM. ! 2 <: = - = 3 / , ; = 7 9 8 6 *==45+<=.<0:;1