The 2023 Legislative Session closed on May 5, 2023. Each session of my career has been a learning experience. Each begins with so many big ideas. There is hope and enthusiasm and focus on this change or that. The capitol teems with activity, familiar faces, hustle, and bustle. As the session progresses, bills fall by the wayside. It is a function of time and distance. The path to passing a bill is long and challenging, and time is always limited.
There are many who watch for workers' compensation each session. They monitor the system for bills that touch Chapter 440. I often hear from them as regards this or that bill, its potential impacts, and perceptions of consequences from bills. There are many touched by this law, but relatively few can take the time to make workers' compensation their priority unless a systemic change is in discussion.
The 2023 session will not join the annals of Florida workers' compensation history. 2023 was no 1970, 1974, 1979, 1990, 1994, 2001, or 2003. Those were each watershed moments in our path to today. Each of those laws included broad shifts that altered our course fundamentally. That said, 2023 will be remembered for repair to the Florida process. CS/CS/HB 487 passed in the waning days, on May 3, 2023. It is a lesson in legislative process.
The name of the bill is instructive. "CS" denotes a committee substitute bill. That means that a committee significantly changed the bill during its passage through that committee's purview. That this bill says that twice, "CS/CS" denotes that this bill was significantly amended twice. The "HB" reveals that it was ultimately the House Bill that passed. We remember that to pass a law in Florida there must be committee consideration (usually) in each chamber and thus two bills are needed, one in each chamber.
The Senate path for this bill was CS/CS/CS/SB 1158. This started life as a Committee Bill, sponsored by the Fiscal Policy and Appropriations Committee. The nomenclature ("CS/CS/CS") illustrates that three committee substitutes were adopted over its life. It emerged from the committee process, was read twice in the Senate, and ultimately "laid on (the) table" on April 28, 2023 when the Senate took up consideration of HB 487 instead.
That is a great deal of detail and some will fault me for it. I can hear Horace Middlemier now ("Get to the point, what does it do?"). But, the point is that the path from introduction to passage can be challenging, can include significant changes, and can come down to the last days of a session.
HB 487 fixes two serious problems in Florida workers' compensation. The first dawned in the 1980s with an abiding distrust in judges. The Legislature was frustrated with the glacial pace of adjudications and was beginning to show some seeming disappointment with long-standing statutory meddling of adjudications generally. It created the "super doc" for resolving medical disputes in 1991. Section 440.13(2)(h)3.a., Fla. Stat. (1991). I was but a child then, but I recall some discussion of engaging this new process in defense of claims.
That "super doc" effort failed. There was never a list of willing and certified providers. The judges could not appoint a tie-breaking physician under that statute because there were no providers. It was a legislative action without enabling, efficacy, or consequence. I tried the issue once, before Judge Anderson back in the day. I can still see him looking at me with his palms held out before him, upward (a shrug, as if to ask "what can I do") as he noted, "there is no doctor list."
The Legislature returned a few years later with the Expert Medical Advisor, section Section 440.13(9), Fla. Stat. (1994). The Division soon after deployed a list of willing providers and the age of the EMA quietly began. There was some early litigation surrounding the EMA, Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352 (Fla. 1st DCA 1997); Walsdorf Sheet Metal v. Gonzalez, 719 So.2d 355 (Fla. 1st DCA 1998). Unfortunately, the EMA process' flaws were many. Its expense was significant. Its delays were regrettable.
CS/CS/HB 487 modifies the EMA process very slightly. In fact, it changes but a single word: "shall." Section 440.13(9)(c) is amended as follows (line 485):
"(9) EXPERT MEDICAL ADVISORS.—(c) If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee's complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the department may, and the judge of compensation claims mayshall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor."
The appellate court explained in Cabrera that the former "shall" was a mandatory requirement. That conclusion of the court was clear (despite there being no statutory language suggesting any consequence of not complying, see Brown v. Pumpian, 504 So. 2d 481 (Fla. 1st DCA 1987); But see Limith v. Lenox on Lake, 163 So. 3d 616, 617–18 (Fla. 1st DCA 2015)(holding that "may" sometimes means one must).
The court later concluded that no party needed to move for EMA appointment, despite clear rules to the contrary. Rule 60Q6.115(1)(2010). Instead, the court held filing a notice of the conflict was sufficient. Banuchi v. Department of Corrections, 122 So. 3d 999 (Fla. 1st DCA 2013). In a single context, "shall" was exhalted in one instance and ignored in another.
But, the impact of HB 487 (2023) is seemingly clear. Appointment of an EMA is now permissive.
The Florida Supreme Court has concluded that “The word ‘may’ when given its ordinary meaning denotes a permissive term rather than the mandatory connotation of the word ‘shall.’” Fla. Bar v. Trazenfeld, 833 So.2d 734, 738 (Fla. 2002), But see Limith. It is of course presumed that the Legislature knew of that generally permissive connotation when selecting "may." In the event there is any doubt as to the Legislature's intent, the bill description should be of assistance. It states that this bill is (line 21):
"amending s. 440.13, F.S.; authorizing, rather than requiring, a judge of compensation claims to order an injured employee's evaluation by an expert medical advisor under certain circumstances;"
Thus, an excellent tool is preserved for the times when an evaluation is deemed appropriate by the assigned judge. The expertise, presumptive correctness, and impact remain. What has changed is simply that discretion has returned to the judge. Thus, the body of law that explains the need for timeliness of such requests remains, and may impact the exercise of discretion. Further, the law regarding payment of EMAs remains. The shift is not a watershed moment in workers' compensation, but it is an important change to be sure.
When is the bill effective? Well, it is a long bill and there are changes to the Florida Self-Insured Guarantee Association; those are effective January 1, 2024 (line 682), and others January 1, 2025 (line 2904). A portion regarding bail bonds also uses January 2024 (line 2588), but still other bail bond provisions are effective July 1, 2023 (line 2804, 2836), and some not until July 2025 (line 2860). The provisions regarding fee schedules are specific for July 1, 2023 (line 3363)(see below).
But, as to the EMA change, for which there is no specific provision regarding its effective date, section 77 of the bill controls. That change from "shall" to "may" "shall take effect upon becoming a law" (line 3365). The change, you see, has already become the law when Governor DeSantis signed the bill on May 25, 2023. Is it substantive or procedural in application? Tune in for the second post about this bill, Procedural? (June 1, 2023).
And, coming soon, the third post regarding this bill, Fee Schedules Revised (June 4, 2023), for the second major impact of HB487.
As a side note, John F. Kennedy is credited with the quote "Success has a thousand fathers, but defeat is an orphan." Already, there are some taking credit for the end of the mandatory EMA. They are relating stories of their great contributions and striving to take credit for this change. The credit for this change lies with people that will not take credit. The law has been improved, and that is what matters.
