In Major Changes in the EMA (May 2023), the news broke regarding CS/CS/HB487 and the end of the statutory EMA mandate. This is a very small (one-word) change from "the judge of compensation claims shall" to "the judge of compensation claims may." Seemingly gone is the mandate that has underlay so much litigation, appellate review, and angst. Seemingly.
The next question for the student is how gone is it? Or, perhaps more aptly "when is it gone?"
There is a distinction regarding changes in the law. We are persistently interested in whether a statutory change is "substantive" or "procedural."
It is beyond clear that "The date of accident determines the substantive law applicable in workers' compensation cases." See, e.g., Ace Disposal v. Holley, 668 So.2d 645, 646 (Fla. 1st DCA 1996); Paulk v. Sch. Bd., 615 So.2d 260 (Fla. 1st DCA 1993). Thus, if this is a substantive change in the law, then either party to a dispute might still have a right to the mandatory appointment of an EMA based on the law in effect on the date of accident being prior to May 25, 2023.
Might.
- Would this depend upon when the accident happened (before or after the Governor signed CS/CS/HB487?
- Would it depend upon when the medical conflict became known?
- Would it depend upon when the party seeking an EMA filed the notice or motion?
The appellate court has already addressed the nature of the EMA statute. In Snider v. Mumford, Inc., 65 So. 3d 579, 580 (Fla. 1st DCA 2011), the court "conclude(d) that section 440.13(9) effects a substantive change." Thus, perhaps the question is answered. But, that conclusion of the court is based upon a far broader issue.
That case addressed whether the EMA statute could be applied to a case in which the date of accident preceded the statutory creation of the EMA. In other words, could that (then) new innovation be applied to a case that began (date of accident) before it was enacted. In deciding it could not, the court relied on its earlier and similar conclusion regarding the application of an IME statute enacted the same year (1994) to an accident that occurred prior. Southern Bakeries v. Cooper, 659 So.2d 339 (Fla. 1st DCA 1995).
Thus, the substance of the EMA (or IME), new concepts (or forms) were created in 1994. The court concluded it would be improper for that new creation to be applied to an accident that occurred before enactment.
But, the EMA itself is not changed by CS/CS/HB487. The law still provides for appointment to resolve conflict. The resulting opinion remains admissible generally, and presumptively correct on the questions posed, e.g. the specific conflict. Lowe's Home Centers, Inc. v. Beekman, 187 So. 3d 318 (Fla. 1st DCA 2016). All that is changed by this bill is a once mandatory judicial obligation is rendered discretionary. From that perspective, there is seemingly room to view this change as procedural.
Or perhaps this could be phrased otherwise, a once vested right to an EMA determination is no longer vested, but is discretionary. Viewed from that perspective, it is perhaps more difficult to see this change as procedural. However, there still may remain some room for discussion. The appellate court explained substance and procedure succinctly in Bell v. University of Florida, 652 So.2d 460 (Fla. 1st DCA 1995). It reaffirmed the "substantive rights of the parties are fixed by the law in effect on the date of injury."
However, in Bell, it nonetheless allowed a penalty provision enacted in 1994 to a case in which the accident occurred in 1990. A penalty, one might argue, cannot be procedural. That law changed a vested right of the employer (to not be subject to a penalty). The court explained, however, that the event from which penalties flowed, a settlement order, occurred in 1994, after the law changed. Therefore, the court characterized those penalties as "a remedial enactment" that was applicable to "currently accruing liabilities arising out of earlier events or claims." Thus, it concluded the penalties applied to payments due after the statute change, regardless of the date of accident.
In doing so, the court relied upon and quoted Litvin v. St. Lucie Cty. Sheriff, 599 So. 2d 1353 (Fla. 1st DCA 1992) regarding a statutory time limit on claim filing. There, the court concluded "this time limit applies prospectively to delinquencies occurring after its effective date, without regard to the" date of accident.
All that said, it is perhaps unlikely that the "may" applies without question or analysis to any and all EMA requests or conflict notices. It is entirely clear that the "may" applies to any such EMA in an accident occurring after May 25, 2023 (when Governor DeSantis signed HB487).
For instances in which the conflict was known to the parties, that is documented, prior to May 25, 2023, it may seem logical that this statutory change would have a substantive effect. For those disputes, perhaps the application of the "shall" would persevere.
For those instances in which the conflict first arises after May 25, 2023, it seems that this statute change is arguably procedural in the same manner described in Litvin and Bell. For those disputes documented and presented after May 25, 2023, the "may" seems likely to control. And clearly for those disputes regarding dates of accident after May 25, 2023, the "may" is reasonably clear.
For now, the best answer is perhaps "it depends." Or, perhaps the answer is more clear, dependent only on the date of accident being prior to or after May 25, 2023. Ultimately, the assigned judge, in any case, will make that determination and perhaps some will venture to the appellate court for clarification or explanation beyond. It is likely that litigation over the EMA has not concluded.