Every new opinion from a doctor in your case has the potential to either add significant settlement value or drop the value to next to nothing, because the biggest driver in settlement evaluations is the cost of future medical care. If, for example, a doc says you need surgery, the settlement value goes up. If a doc says you no longer need any care related to the accident, the value goes way down. So, when you ask about the EMA opinion going "in your favor," it depends on what questions are put to the EMA and how s/he answers them.
You should know that the opinions of the EMA are presumed correct and effectively binding on the JCC (w/c judge), unless there is "clear and convincing evidence" why the opinion should not be accepted. Note, though, that, even a favorable EMA report might not have enough information for the JCC to rule in your favor, which is important, because the claimant has the burden or proving every element of his/her case.
So, for example, if the EMA's report says that the claimant "would benefit from surgery, which I relate to the work accident," that isn't necessarily clear enough to know whether the doctor thinks that the need for surgery is more than 50% caused by the work accident, which is the legal test for "major contributing cause," or whether the need is just the most preponderant cause when compared to all other causes (but still only 50% or less of the total cause). Also, "would benefit" doesn't necessarily mean that the surgery is medically necessary, as opposed to just being a viable treatment option. Other ambiguities could also cause problems. I would submit, therefore, that, until an attorney deposes the EMA doctor, you don't really know what the EMA means.
Because the EMA can swing the value of a case so dramatically, it's sometimes a good idea to attempt whole-case settlement before attending the examination. This is especially true if you already know who the EMA doc will be and you can get good advice about this doctor's tendencies. So, it's imperative that you get experienced counsel on your side now. Attempting to try a complicated medical case on your own would be foolish. If you need a name for a referral who will give you a free consultation, please e-mail me directly.
Ken Schwartz, Esq.
I would hope if you are this far along, you have an attorney assisting you. If you do, that attorney is in the best position to give you advice. If you don't have one, you really need to get one ASAP. An EMA is the "tie breaking" doctor opinion and the Judge will generally accept his/her opinions, unless there is a very strong reason not to. If the EMA obviously sides with you, then yes, the value of the case may in fact go up. Without details regarding the case. injuries, and issues, it is hard to tell. If you need help, feel free to give me a call. I am in Maitland and offer a free consultation.
Yes. If you do not have an attorney on a disputed case, I strongly suggest you reconsider.
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A WC Attorney is your best chance to come out on top with this matter.
We offer general concepts, but you should give ALL your facts to a licensed Attorney in your state before you RELY upon any legal advice.
If the EMA doctor sides with you, then the Judge will most likely have to accept that doctor's opinion. How that impacts the value of your case depends upon the issues and medical treatment you will require based upon the medical opinion. If you are at this stage and do not have an attorney, you should immediately consult one. If you do have an attorney, you should discuss this with him, as he will have the information necessary regarding your case to provide an accurate assessment.
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