THE NEED FOR KNOWLEDGEABLE, IMPARTIAL MEDICAL EXPERTS
Workersʼ Compensation Section
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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
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