On July 9, 2018 the First District Court's decision in Altemar v. Lifespace Communities crossed my desk. Unlike any other appeals in Florida, the First District opinions in workers' compensation cases prominently identify the trial judge by name. In this instance, the Judge was Timothy Basquill. That slowed me a bit. Judge Basquill has not been on the bench for a significant time.
The final order in this case is available to the public. It was entered and published on April 8, 2016. According to the Court's online docket, the appeal was filed on May 11, 2016. A "cross-appeal" was filed on May 25, 2016. For clarity, an appeal signals that one party is dissatisfied and finds an error in the trial judge's decision. A cross-appeal signals that another party in the case likewise finds (usually "other") error and seeks review. The two parties may be focused on a singular issue or have various bases upon which each advocates reversal.
The Court's analysis is brief, 357 words, on two pages. That is frankly more discussion than the majority of Florida appellate decisions warrant. Most appeals in Florida conclude with simply "affirmed" or "denied," very brief conclusions with little explanation. These are referred to as "per curium affirmed" or "per curium denied," and essentially inform the party seeking relief (called "appellant" or "petitioner") that the Court will not change the decision of the trial judge. However, these decisions do not inform the appellant/petition why the Court is not changing the trial decision. There has been much discussion of these "per curium" decisions, and complaints about them.
The Record on Appeal in Altemar v. Lifespace Communities was submitted on August 4, 2016. That was 85 days after the notice of appeal was filed. Almost 30 days later, the claimant filed a motion for an extension of time to file the initial brief (a written argument regarding the reason and argument for changing the trial judge's determinations). That was granted, and the brief deadline was extended to October 5, 2016; the brief was in fact filed on October 4, 2016.
The claimant also filed a motion to supplement the record. The record is all of the testimony and documents that were submitted by the parties when the case was submitted to the trial judge for determination. There are occasions when that record inadvertently does not include something that was actually considered by the trial judge; errors occur. However, as often, some party asks the appellate court to consider evidence that was not presented to the trial judge. It has always been curious to me that appellate courts are willing to consider new evidence in the course of an appeal.
The decisional law is replete with examples of appellate courts declining to even consider various arguments and complaints on appeal. Those courts have held that error at the trial must be noticed by a party during or before trial, and "preserved" by voicing an objection in order for the party to be allowed to later seek appellate review. There are hundreds of Florida decisions that note something was "not properly preserved." There is an exception to that conclusion, however, when "fundamental error" is demonstrated to the appellate court.
Though that "properly preserved" analysis is repeatedly and regularly employed by appellate courts, declining to consider arguments or analysis on appeal that was not voiced at trial, there is the contrary perceived willingness of appellate courts to nonetheless consider testimony or documents (evidence) in an appeal that was not presented at trial. That evidence is generally presented to the court with its permission, sought by a motion to supplement the record. Some might argue that if such evidence is important enough to consider, it is important enough to present to the trial judge and not just important enough to present later to the appellate court.
Returning to Altemar, on October 20, 2016, the employer/carrier ("cross-appellant") filed a similar motion for an extension of time to file its "answer brief;" The Court granted that also, extending the due date to November 21, 2016, and the "answer brief" was filed that day.
The appellant (claimant) then filed a "reply brief," the opportunity to comment upon the issues addressed and raised by the "answer," on December 16, 2016. The "cross-appellant" (employer/carrier) sought an extension to file its "cross reply," which was granted by the Court. That was filed on January 17, 2017, before the extended deadline set by the Court. The Court did not conduct an oral argument (an opportunity for the parties' lawyers to both present their arguments and answer questions the appellate judges may pose).
On July 9, 2018, the District Court rendered its brief decision. This was 789 days after the notice of appeal was filed, just under two years and two months. This was 535 days after the final brief was filed January 17, 2017, almost 1.5 years.
The Court concluded that the Judge of Compensation Claims erred in according the expert medical advisor (EMA) opinions "a presumption of correctness with regard to the Claimant’s need for attendant care." The Court concluded that "the evidence does not demonstrate a sufficient disagreement in the opinions of the health care providers on that ground." The appointment of an EMA is mandatory, the Judge "shall" appoint "If there is disagreement in the opinions of the health care providers."
The Court has repeatedly reversed Florida trial judges for declining to appoint an expert EMA. Pointedly, the Court has concluded that a trial judge cannot make determinations of the credibility or persuasiveness of a medical opinion in determining whether there is or is not a conflict. Chapman v. Nationsbank, 872 So.2d 390, 392 (Fla. 1st DCA 2004); Brown v. Vanguard Sec., 7 So.3d 572 Fla. 1st DCA 2009).
The Court has repeatedly reversed Florida trial judges for declining to appoint an expert EMA. Pointedly, the Court has concluded that a trial judge cannot make determinations of the credibility or persuasiveness of a medical opinion in determining whether there is or is not a conflict. Chapman v. Nationsbank, 872 So.2d 390, 392 (Fla. 1st DCA 2004); Brown v. Vanguard Sec., 7 So.3d 572 Fla. 1st DCA 2009).
However, in Altemar, the Court reminds us that the trial judge is charged with determining that there is a conflict (not that there "was" a conflict). It cited Guerra v. C.A. Lindman, Inc., 146 So. 3d 527, 529 (Fla. 1st DCA 2014)(reversing order appointing EMA because there was no disagreement in the opinions of the health care providers, in that the opinions of some of the doctors' opinions or conclusions were stale because of the passage of time).
The Court in Altemar further explains that distinction, holding that the trial judge, in deciding whether to appoint an EMA, must decide whether the two medical providers each rendered "a definitive opinion" regarding the issue as to which there is an alleged "disagreement." In this instance, "whether attendant care benefits were medically necessary" or whether such necessity "was caused by the compensable accident."
Clearly, there are two aspects of EMA opinion that are worthy of discussion. First, whether an EMA should be appointed. Second, the import of that doctor's resulting opinion testimony. The first is addressed sufficiently above. The second is focused on the precise issue(s) the expert addresses. When addressing the specific conflict for which she or he was appointed, the doctor's opinions are cloaked in a presumption of correctness. But, if the doctor opines on other medical issues, those opinions may also be considered by the judge but those opinions are contrarily not presumptively correct. The Court in Altemar concluded the EMA opinion in question was not worthy of that presumption of correctness; in retrospect, there was not enough of a conflict.
There is thus a series of questions that may be pertinent in deciding a motion for an expert medical advisor. First, is there a direct, specific conflict (one expert says "a" and the other says "not a")? Second, are those two opinions both current (one says surgery "is" needed, another says it "was" not needed when the patient was last seen two years ago)? If these lead to the determination of that an EMA must be appointed, the judge may then struggle with the appropriate specialty (simpler if the conflicting experts are both the same specialty, such as orthopedic surgeon; harder if one is an orthopedic surgeon and the other a neurosurgeon; perhaps harder still if one is a surgeon and the other is not, etc.).
And, it is important to address these questions thoroughly. It is important to address all issues at trial thoroughly. If a party fails to do so, it may be in the position of seeking later to supplement the record for the appellate court to consider evidence never presented to or considered by the trial court. That bears repeating, a party may fail at trial by not presenting all the available evidence, and then prevail on appeal by showing the appellate court documents or testimony that it neglected to present at trial. Some will question why appellate courts regularly decline to consider arguments not "preserved," but agree to consider evidence never presented.
Finally, in support of being thorough at trial in both presenting evidence and argument, parties should remember that it could take two years after trial to learn the ultimate outcome of the case. Getting the evidence and argument right at trial is critical.
Finally, in support of being thorough at trial in both presenting evidence and argument, parties should remember that it could take two years after trial to learn the ultimate outcome of the case. Getting the evidence and argument right at trial is critical.
