Sedgwick Claims Management Services, the GEO Group, Inc. v. Ryan Thompson

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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

No. 1D2023-0193
_____________________________

SEDGWICK CLAIMS MANAGEMENT
SERVICES, THE GEO GROUP,
INC.,

Appellants,

RYAN THOMPSON,

Appellee.
_____________________________

On appeal from the Office of the Judges of Compensation Claims.
Daniel A. Lewis, Judge.

Date of Accident: December 21, 2020.

September 3, 2025

M. K. THOMAS, J.

The Geo Group, Inc., and Sedgwick Claims Management
Services (“E/C”), appeal a final order that determines Ryan
Thompson (“Claimant”) suffered a compensable, on-the-job
accident. It argues the Judge of Compensation Claims (“JCC”)
reversibly erred by: (1) denying its Daubert 1 objection to the

1 Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579
(1993),

and codified in section 90.702, Florida Statutes.
admissibility of the report and opinions of the expert medical
advisor (“EMA”); and (2) relying upon the EMA opinion to
determine a compensable accident occurred. 2 We affirm the JCC’s
order but write to address a matter of first impression—whether
section 440.25(4)(d), Florida Statutes (2020), governing procedures
for workers’ compensation mediation and hearings, precludes a
Daubert challenge to EMA opinions. Based on the plain and
unambiguous language of the statute, we find that it does.

I. Facts

In 2020, Claimant was employed as a correctional officer and
tasked with patrolling the perimeter of the facility in a van. He
claimed that the constant turning of his head to survey the
grounds caused injuries to his neck and left shoulder. The
repetitive trauma claim was initially accepted by the E/C as
compensable under the “pay and investigate” provision of section
440.20(4), Florida Statutes. However, within 120 days of
acceptance, the E/C denied the claim in its entirety, reasoning that
Claimant had not sustained a compensable injury caused by the
work activities. Thereafter, Claimant filed a Petition for Benefits
(“PFB”) requesting compensability of the accident and various
indemnity and medical benefits. In response, the E/C again denied
compensability of the accident but agreed to pay reimbursement
for medications prescribed prior to the initial denial of the claim. 3

Prior to the final hearing, Claimant filed a notice of conflict in
medical opinions between his independent medical examiner
(“IME”)—Dr. Thomas Roush—and the E/C’s IME—Dr. Neil
Schechter. In short, Dr. Roush opined that the work accident was

2 The final order on appeal also denied the E/C’s defenses
under sections 440.09(4) and 440.105, Florida Statutes. The E/C
did not appeal denial of the misrepresentation defenses.
3 The matter was bifurcated for the JCC to first determine

compensability of the accident and injuries.

2
the major contributing cause of Claimant’s neck injuries. 4 Dr.
Schechter determined that the work activities would not have
caused Claimant’s injuries because there was no whipping motion
involved. The E/C later moved to strike the testimony of Dr. Roush
because his opinions were not based on sufficient information to
pass muster under Daubert. The JCC denied the E/C’s motion
finding it was nonspecific and failed on the merits. He certified a
conflict in medical opinions and appointed Dr. Cameron as an
EMA to “break the tie” regarding the causation issue. See §
440.13(9)(c), Fla. Stat.

Dr. Cameron provided an EMA report and testified via
deposition. 5 He opined that Claimant’s injuries could have resulted
from anything, even a sneeze in the car. However, in the absence
of any other scenario or explanation, he determined that the work
activities were the major contributing cause of the neck injuries.
Dr. Cameron confirmed he had no evidence that Claimant had
sustained a disc herniation, whether traumatic or degenerative,
which predated the onset of his symptoms. As such, he causally
related Claimant’s performance of the work activities to his
cervical herniated disc.

The E/C filed a motion to strike Dr. Cameron’s EMA report
and testimony, raising a Daubert objection. In response, Claimant
argued that section 440.13(9)(c) dictated that Dr. Cameron’s EMA
opinion was presumed to be correct unless there was clear and
convincing evidence to the contrary, and no such evidence was
introduced. Additionally, he asserted that the Daubert standard
does not apply to EMAs, but even so, Dr. Cameron’s testimony was
admissible because he had reviewed all records, and the E/C failed
to prove that his opinion was not the product of reliable principles
and methods.

4 At Dr. Roush’s deposition, the E/C raised a Daubert objection

to the admissibility of his testimony and IME report.
5 At the deposition, the E/C raised a timely Daubert objection

to admissibility of Dr. Cameron’s report and testimony.

3
At the merits hearing, the JCC took the Daubert motion under
advisement and postponed his ruling. After the merits hearing, the
JCC entered a final order denying the E/C’s Daubert challenge to
Dr. Cameron’s EMA report and testimony. He determined that Dr.
Cameron’s opinions were the product of reliable principles and
methods applied reliably to the facts of the case. Ultimately, the
JCC accepted the testimony of Drs. Roush and Cameron as to
causation and declared that the repetitive movement at work “was
the cause, and the major contributing cause, of the claimant's neck
and left shoulder injury or aggravation thereof.” The E/C’s motion
for rehearing and/or reconsideration was denied. This is the E/C’s
appeal.

II. Analysis

An appellate court reviews under an abuse of discretion
standard a trial court’s admission or exclusion of expert testimony.
See Booker v. Sumter Cnty. Sheriff’s Off./N. Am. Risk Servs.,
166
So. 3d 189, 194
(Fla. 1st DCA 2015). But “[t]o the extent resolution
of this appeal requires statutory interpretation, it is subject to de
novo review.” MBM Corp. v. Wilson,
186 So. 3d 574, 576
(Fla. 1st
DCA 2016).

The E/C contends that the JCC abused his discretion by
admitting the report and testimony of the EMA, Dr. Cameron, over
its objection based on section 90.702, Florida Statutes, which
codifies the federal Daubert standard. In response—although
acknowledging that Daubert applies generally in Florida workers’
compensation cases—Claimant asserts that nothing about
Daubert or section 90.702 applies to an EMA appointed under
section 440.13(9), Florida Statutes. Specifically, section
440.25(4)(d) directs that the report or testimony of an EMA “shall
be admitted into evidence,” thereby statutorily precluding a
Daubert challenge. Pursuant to the applicable, amended version of
section 440.25(4)(d), we agree.

To determine if a Daubert challenge to EMA reports and
testimony is statutorily precluded, we begin with
the statutory text. “To determine its best reading, we exhaust all
the textual and structural clues that inform its meaning.”
DeSantis v. Dream Defenders,
389 So. 3d 413
, 418 (Fla. 2024)

4
(internal quotations and citations omitted). Section 440.25 governs
“[p]rocedures for mediation and hearings” in workers’
compensation proceedings and was last amended in 2003. It now
provides, in relevant part:

When there is a conflict in the medical evidence
submitted at the hearing, the provisions of s. 440.13 shall
apply. The report or testimony of the expert medical
advisor shall be admitted into evidence in a proceeding
and all costs incurred in connection with such
examination and testimony may be assessed as costs in
the proceeding, subject to the provisions of s. 440.13.

§ 440.25(4)(d), Fla. Stat. (emphasis added). 6

6 For context, an EMA physician is the “tiebreaker.” See
Snider v. Mumford, Inc.,
65 So. 3d 579, 581
(Fla. 1st DCA 2011).
EMAs are “to assist . . . the [JCCs] within the advisor’s area of
expertise” and “to provide peer review or expert medical
consultation, opinions, and testimony . . . to [a JCC] in connection
with resolving disputes relating to reimbursement, [and] differing
opinions of health care providers . . . .” § 440.13(9)(a)–(b), Fla. Stat.
(2020). Subsection (9)(c) further clarifies that “[t]he opinion of the
[EMA] is presumed to be correct unless there is clear and
convincing evidence to the contrary as determined by the [JCC].”
§ 440.13(9)(c), Fla. Stat. (2020). Chapter 69L-30, Florida
Administrative Code, governs EMAs and provides the
requirements to qualify as an EMA in the workers’ compensation
forum. Florida Administrative Code Rule 69L-30.003 requires that
an EMA must correctly answer 95% of EMA Tutorial review
questions, hold valid licensure issued by Florida Department of
Health with “clear active” status, be board certified or board
eligibility applicable to the specialty, demonstrate experience in
assignment of permanent impairment ratings within two years of
application, have experience in performing IMEs with documented
proof, and have completed twenty hours of continuing medical
education within two years of application, among others.

5
The E/C asserts that the question was previously answered in
State Dep’t of Corr. v. Junod,
217 So. 3d 200, 206
(Fla. 1st DCA
2017), where a Daubert objection was successfully applied to
render inadmissible an EMA opinion. In Junod, this Court
commented that “an EMA opinion also must comply with the
Florida Evidence Code, including Daubert.”
Id.
And we have also
observed that “[t]he 2013 Legislature has made clear that the
admissibility of expert opinions requires that the requirements of
Daubert be met.” See Giaimo v. Fla. Autosport, Inc.,
154 So. 3d 385,
388
(Fla. 1st DCA 2014). But the legal question addressed in
Junod and Giaimo was limited to whether the EMA opinions
withstood a Daubert objection—not whether pursuant to section
440.25(4)(d) its application is statutorily precluded altogether. And
any implication otherwise is dicta which plainly cannot control in
the face of clear statutory language to the contrary. See Garcia v.
Dyck-O’Neal, Inc.,
178 So. 3d 433, 436
(Fla. 3d DCA 2015) (“When
the clear and unambiguous language of a statute commands one
result, as here, while dicta from case decisions might suggest a
different result, we must apply the statute so as to give effect to
legislative intent.”). “When a court makes a pronouncement of law
that is ultimately immaterial to the outcome of the case, it cannot
be said to be part of the holding in the case.” Lewis v. State,
34 So.
3d 183, 186
(Fla. 1st DCA 2010).

With the above clarification established, we must, however,
recognize and square our reasoning with the holding of U.S. Sugar
Corp. v. Henson,
823 So. 2d 104
(Fla. 2002). In Henson, the
supreme court confronted the following certified question:

IS A JUDGE OF COMPENSATION CLAIMS REQUIRED TO APPLY
THE STANDARDS OF FRYE V. UNITED STATES,
293 F. 1013
(D.C. CIR. 1923), PRIOR TO ADMITTING EXPERT OPINIONS
CONCERNING NOVEL SCIENTIFIC PRINCIPLES OR
METHODOLOGIES IN A WORKERS’ COMPENSATION
PROCEEDING?

Id. at 105. 7

7 After Henson was released, the Daubert standard,
specifically Federal Rule of Evidence 702, controlled the issue of

6
In answering the question affirmatively, the supreme court
specifically addressed section 440.29(4), Florida Statutes (2001). 8
For proper context, an understanding of the factual backdrop of
Henson is necessary. The workers’ compensation claim arose from
Henson’s twenty-eight-year work history with the employer during
which he was regularly exposed to pesticide. Id. Litigation of the
case included the parties calling treating physicians and
independent medical experts to testify. Id. at 106. A Frye objection
was raised to the admissibility of the report and causation
testimony of Henson’s medical expert. Id. at 105–06. The JCC
denied the objection without conducting a separate Frye hearing.
Id. at 106. On appeal to this Court, the JCC’s overall finding of
compensability was affirmed on the premise that although a Frye
hearing was not conducted, even if it had occurred the medical
testimony was admissible as based upon scientific precepts
generally accepted in the scientific community. Id. This Court
certified the question stated above (1) because the imposition of
a Frye standard of admissibility of novel scientific evidence would
certainly increase the cost and create delay in workers’
compensation proceedings; (2) the need to retain experts to
establish that the Frye conditions have been satisfied may serve as
a deterrent to claimants being able to obtain counsel and prosecute
a claim which might involve Frye issues; and (3) the present
workers’ compensation system allows the JCC to evaluate
competing medical testimony and make a determination on

admissibility of expert opinions and superseded the prior
precedent of Frye. See Daubert,
509 U.S. at 587-88
.
8 Section 440.29(4) instructs as follows:

All medical reports of authorized treating health care
providers relating to the claimant and subject accident
shall be received into evidence by the judge of
compensation claims upon proper motion. However, such
records must be served on the opposing party at least 30
days before the final hearing. This section does not limit
any right of further discovery, including but not limited
to, depositions.

§ 440.29(4), Fla. Stat. (2001).

7
causation. See U.S. Sugar Corp. v. Henson,
787 So. 2d 3
, 10–11
(Fla. 1st DCA 2000) (citing Wiley v. Se Erectors, Inc.,
573 So. 2d
946
(Fla. 1st DCA 1991)); Martin Marietta Corp. v. Glumb,
523 So.
2d 1190
(Fla. 1st DCA 1988); Smith v. Crane Cams, Inc.,
418 So.
2d 1266, 1269
(Fla. 1st DCA 1982).

The following excerpt best encapsulates the arguments
asserted by Henson before the supreme court:

[B]ecause the workers’ compensation scheme is based on
“a mutual renunciation of common law rights and
defenses by employers and employees alike,” section
440.015, Florida Statutes (1995), the common
law Frye standard could not be a bar to a claimant’s
recovery. In addition, [Henson] argues that Frye-testing
medical testimony in workers’ compensation cases would
be contrary to section 440.29(4), Florida Statutes (1995),
in which the legislature has provided that, upon proper
motion, “[a]ll medical reports of authorized treating
health care providers relating to the claimant and subject
accident shall be received into evidence by the [JCC].”
Finally, Henson submits that Frye testing is unnecessary
to assure evidentiary reliability, because section
440.13(9)(c) provides for the appointment of expert
medical advisors to assist the JCC with issues of medical
causation and requires that the EMA [expert medical
advisor] opinion “is presumed to be correct unless there
is clear and convincing evidence to the contrary.”

Henson,
823 So. 2d at 108
(emphasis added) (quoting Henson,
787
So. 2d at 10
). 9

Regarding application of section 440.29(4), considering Frye,
the supreme court found no conflict, reasoning as follows:

9 Additional argument encompassed section 440.105, Florida

Statutes (1995), that further provides, “It is the intent of the
Legislature that the Workers’ Compensation Law be interpreted
so as to assure the quick and efficient delivery of disability and
medical benefits to an injured worker . . . .”

8
First, adoption of the Frye standard within the
worker’s compensation system does not conflict with the
above-quoted portion of section 440.29(4), because this
section’s mandated admission of “medical reports” does
not speak on the issue of expert opinions. This statutory
provision only ensures the admission into evidence of the
written records of the claimant’s treating physicians and
does not address the content of expert opinion
testimony. See § 440.29(4), Fla. Stat. (2001).
Thus, section 440.29 has no bearing on the question
before us.

Id. (emphasis added).

Then, the supreme court pivoted to specifically address expert
medical opinions as follows:

Section 440.13(9), Florida Statutes (2001), defines
the role and appointment of expert medical advisors
(EMA’s) in workers’ compensation proceedings. While the
statutory framework certainly allows the JCC to rely
upon an EMA’s expert opinion, see § 440.13(9)(c) (“The
opinion of the [EMA] is presumed to be correct unless
there is clear and convincing evidence to the contrary as
determined by the [JCC].”), none of the provisions of
chapter 440 preclude or conflict with use of
the Frye criteria to test and ensure the reliability of novel
scientific methods utilized by any expert witness. See §
440.13(9), Fla. Stat. (2001).

Id.

Ultimately, the supreme court determined “it is only logical
for us to explicitly extend the reasoning of our prior decisions in
the civil and criminal arenas to the area of workers’ compensation
claims. The Frye test must be performed to ensure the

9
trustworthiness of novel scientific theories.” Id. at 109. 10 Stopping
here, with recognition of the holding of Henson and nothing more—
we would be compelled to allow Daubert challenges to EMA reports
and opinions. However, as will be detailed below, the legal
landscape has changed since Henson: The Legislature has
amended relevant portions of Chapter 440, and the supreme court
has disclaimed jurisdiction over the rules of workers’ compensation
proceedings.

Our analysis here is on a clean slate as we contemplate an
amended version of the statute and/or different statutes
altogether. The Henson opinion did not address section
440.25(4)(d). Furthermore, declarations in Henson resulted from
the sole question of whether section 440.29(4), rendering
admissible all medical reports of authorized treating health care
providers in a workers’ compensation proceeding, precluded
application of the Frye standard. In contrast, our analysis is on the
text of section 440.25(4)(d)—as amended—and amended statutes
supersede analyses in prior cases that were based on prior
statutory versions or did not address the precise legal argument
presented here. Beans v. Beans,
407 So. 3d 483
(Fla. 1st DCA
2024).

10 The supreme court provided an important reminder which

is worthy of restatement:

We wish to highlight the principle that under Frye,
the inquiry must focus only on the general acceptance of
the scientific principles and methodologies upon which an
expert relies in rendering his or her opinion. Certainly,
the opinion of the testifying expert need not be generally
accepted as well. Otherwise, the utility of expert
testimony would be entirely erased, and “opinion”
testimony would not be opinion at all—it would simply be
the recitation of recognized scientific principles to the fact
finder.

Henson,
787 So. 2d at 110
. This would also be applicable to
application of the Daubert standard.

10
A timeline of relevant statutory amendments and precedent
shaping the evidentiary and procedural rules at play here is
informative:

1957: Enactment of section 440.25(3)(b), Florida
Statutes, that provides as follows:

At such hearing the claimant and employer may
each present evidence in respect to such claim
and may be represented by an attorney. When
there is a conflict in medical evidence at the
hearing the deputy commissioner may designate
a disinterested doctor to submit a report or to
testify in the proceeding, after such doctor has
reviewed the medical records and evidence,
examined the claimant, or otherwise made such
investigation as appropriate. The report or
testimony of any doctor so designated by the
deputy commissioner shall be made a part of the
record of the proceedings and shall be given the
same consideration by the deputy commissioner
as is accorded other medical evidence submitted
in the proceeding; . . .

§ 440.25(3)(b), Fla. Stat. (1957) (emphasis
added);

1985: Florida expressly adopts the Frye standard. See
Bundy v. State,
471 So. 2d 9
(Fla. 1985);

1993: The Supreme Court of the United States directs
that the Federal Rules of Evidence supersede
Frye. See Daubert,
509 U.S. 579
;

*The Florida Legislature renumbers section
440.25(3)(b) to (4)(d) and amends it as follows:

When there is a conflict in the medical evidence
submitted at the hearing, the provisions of s.
440.13 shall apply. The report or testimony of
the expert medical advisor shall be made a part

11
of the record of the proceedings and shall be
given the same consideration by the judge of
compensation claims as is accorded other
medical evidence submitted in the proceeding;
...

§ 440.25(4)(d), Fla. Stat. (1993) (emphasis
added).

*The Florida Legislature enacts the EMA
provision in section 440.13(9) which declares
that the report or testimony of an expert medical
advisor is “presumed correct unless there is
clear and convincing evidence to the contrary as
determined by a judge of compensation
claims.” § 440.13(9)(c), Fla. Stat. (1993);

2001: Section 440.25(4)(d) was amended to read:

When there is a conflict in the medical evidence
submitted at the hearing, the judge of
compensation claims may designate a
disinterested doctor to submit a report or to
testify at the proceeding; . . . The report or
testimony of any doctor so designated by the
judge of compensation claims shall be made a
part of the record of the proceedings and shall be
given the same consideration by the judge of
compensation claims as is accorded other
medical evidence submitted in the proceeding; .
..

§ 440.25(4)(d), Fla. Stat. (2001) (emphasis
added);

2002: The Florida Supreme Court issues Henson,
823
So. 2d 104
, which declared that the Frye standard
is the generally acceptable standard for
admissibility of novel evidence and applies to
medical experts in workers’ compensation
proceedings;

12
2003: The Legislature again amends section
440.25(4)(d) to read as follows, “When there is a
conflict in the medical evidence submitted at the
hearing, the provisions of s. 440.13 shall apply.
The report or testimony of the expert medical
advisor shall be admitted into evidence in a
proceeding . . . .”; 11

*Section 440.25(4)(d) now mandates report or
testimony of an EMA “shall be admitted into
evidence.”

2004: The Florida Supreme Court declared that it lacks
jurisdiction over the rules of workers’
compensation procedure as follows:

Having reviewed our jurisdiction under the
Florida Constitution, we conclude that this
Court lacks the authority to promulgate rules of
workers’ compensation procedure. The original
and appellate jurisdiction of the courts of Florida
is derived entirely from article V of the Florida
Constitution. This Court has previously cited
to article V, section 2(a), of the Florida
Constitution as authority for the Court’s
adoption of workers’ compensation rules of
procedure. That subsection provides that “[t]he
supreme court shall adopt rules for the practice
and procedure in all courts.” (emphasis
added). Article V, section 1, of the Florida
Constitution provides that “[t]he judicial power
shall be vested in a supreme court, district
courts of appeal, circuit courts and county
courts. No other courts may be established by

11 This amendment deleted disinterested doctor and
substituted expert medical advisor. It also removed language
regarding the EMA opinion being given the same consideration as
other medical evidence, removing any conflict with section 440.13.

13
the state, any political subdivision or any
municipality.” The Office of the Judges of
Compensation Claims (OJCC) is not a court of
this State because it is neither the
supreme court, a district court of appeal, a
circuit court, nor a county court.

In Re Amend. to the Fla. Rules of Workers’ Comp.
Proc.,
891 So. 2d 474
, 477–78 (Fla. 2004); see also
De Jesus Abreu v. Riverland Elem. Sch.,
301 So.
3d 1005
(Fla. 1st DCA 2019); 12

2006: The Florida Supreme Court issues Ibar v. State,
938 So. 2d 451
(Fla. 2006), announcing that the
Frye standard, rather than Daubert, applied in
Florida;

2010: Section 440.29(3), provides that, “The practice
and procedure before the judge of compensation
claims shall be governed by the rules adopted by
the Supreme Court. . . .” * Contrary to In Re
Amend. to the Rules of Workers’ Comp. Proc.,
891
So. 2d at 474
;

2011: Legislature amends section 440.29(3) to, “The
practice and procedure before the judge of
compensation claims shall be governed by the
rules adopted by the Office of Judges of
Compensation Claims.” *Now, consistent with the
Florida Supreme Court’s disclaimer of

12 This Court has since consistently held that it is within the

Legislature’s purview to establish rules of evidence for workers’
compensation. See, e.g., Booker,
166 So. 3d at 192
; Cortina v. State,
Dep’t of HRS,
901 So. 2d 273, 274
(Fla. 1st DCA
2005) (holding section 440.13(5)(e)’s limit on admissible medical
witnesses to authorized treating IME or EMA does not violate
separation of powers because “this court has consistently
recognized and upheld the Legislature's prerogative as to
evidentiary issues in workers' compensation cases”).

14
jurisdiction over rules of procedure in workers’
compensation proceedings;

2013: The Florida Legislature modified section 90.702,
Florida Statutes, to adopt the Daubert
standard for expert testimony in the courts of
this state in place of the Frye standard;

2017: The Florida Supreme Court rejected the
implementation of Daubert and retained the Frye
standard because it perceived the Florida
Legislature as infringing on its power to enact
procedural law when it amended sections 90.702
and 90.704 of the Florida Evidence Code in 2013.
See In re Amend. to Fla. Evidence Code,
210 So.
3d 1231
, 1239 (Fla. 2017); Delisle v. Crane Co.,
258 So. 3d 1219, 1229
(Fla. 2018);

2019: In In Re. Amend. to Fla. Evidence Code,
278 So.
3d 551
(Fla. 2019), the Florida Supreme Court
receded from its 2017 decision and adopted
Daubert.

As illuminated by the timeline, the precedential impact of
Henson is limited for the following reasons: (1) section 440.25(4)(d)
was amended in 2003, one year after Henson, to instruct that the
“report or testimony of the expert medical advisor shall be
admitted into evidence in a proceeding . . . .” The prior version only
required that the EMA report be entered into the “record”; (2) two
years after Henson, the supreme court held that it does not have
jurisdiction over the rules of workers’ compensation procedure. See
In re Amend. to Rules of WC Proc., 891 So. 2d. at 477–78; and (3)
the 2003 amendment deleted from section 440.24(4)(d), the
instruction that “expert medical advisors” shall be considered like
other medical experts, erasing the explicit conflict with the
treatment of EMA opinions under 440.13(9)(c), requiring that the
opinion is presumed correct unless there is clear and convincing
evidence to the contrary.

In the 2020 version of section 440.24(4)(d) the Legislature’s
deliberate use of language that the report or testimony of an EMA

15
“shall be admitted into evidence in a proceeding” is not directory.
“Based on its plain and ordinary meaning, the word ‘shall’ in a
statute usually has a mandatory connotation.” See Izaguirre v.
Beach Walk Resort/Travelers Ins.,
272 So. 3d 819
, 820 (Fla. 1st
DCA 2019). And use of the term “shall” “leads inevitably to the
conclusion that the provision is not amenable to an exercise of
discretion.” Id.; see also DeGregorio v. Balkwill,
853 So. 2d 371, 374
(Fla. 2003) (holding that when the word “shall” is used in a statute,
it generally requires mandatory compliance); Palm Springs Gen.
Hosp. v. Cabrera,
698 So. 2d 1352, 1356
(Fla. 1st DCA 1997) (“The
statutory language provides no support for the view that the
statute is directory only, or that evaluation by expert medical
advisors is to be left to the discretion of the judges of compensation
claims.”); Steinbrecher v. Better Constr. Co.,
587 So. 2d 492, 494
(Fla. 1st DCA 1991) (holding penalty for late payment of
compensation is mandatory where statute states such penalty
“shall be paid”).

“‘[W]hen the language of the statute is clear and unambiguous
and conveys a clear and definite meaning . . . the statute must be
given its plain and obvious meaning.’” Fla. Dep’t of Revenue v. New
Sea Escape Cruises, Ltd.,
894 So. 2d 954, 960
(Fla. 2005) (quoting
A.R. Douglass, Inc. v. McRainey,
137 So. 157, 159
(Fla. 1931)).
Section 440.25(4)(d) is clear and unambiguous, and it
unequivocally leaves the JCC no discretion and no role in
determining admissibility of an EMA’s report or testimony.
Section 440.25(4)(d) statutorily mandates that the EMA report and
testimony are admissible. Thus, there exists no need for a
“gatekeeper” of evidence. After all, the Daubert standard
determines admissibility; it does not apply to the weight or
credibility to be afforded the opinions. See Booker,
166 So. 3d at
192
(citing Daubert,
509 U.S. at 597
). Notably, in the 2003
amendments to Chapter 440, the Legislature used this same modal
verb, “shall,” in another subsection of 440.13 which allows for a
“consensus IME” (the parties mutually agree to a specific doctor to
perform an evaluation).

Pursuant to the amended version of section 440.25(4)(d), there
is no threshold of admissibility for the report and opinions of an
EMA. This is not to say that the EMA opinion cannot be challenged
as unreliable, as the party opposing the presumption of correctness

16
may overcome it by clear and convincing evidence. See
§ 440.13(9)(c), Fla. Stat. An EMA opinion may be challenged as to
its weight and credibility and perhaps argued to be demoted to
equal relevance of any other expert medical opinion in evidence.
See Lowe's Home Ctrs., Inc. v. Beekman,
187 So. 3d 318, 322
(Fla.
1st DCA 2016) (noting that “even opinions voiced by an EMA which
‘exceed the scope’ of the perceived disagreement would be
admissible—but not presumptively correct,” and “all other medical
opinions expressed by the EMA carry the same weight as that of
an independent medical examiner or an authorized treating
physician”); Fitzgerald v. Osceola Cnty. Sch. Bd.,
974 So. 2d 1161,
1164
(Fla 1st DCA 2008) (noting that, even if an EMA’s opinion is
found by a JCC to not merit application of the statutory
presumption of correctness, the opinion remains in evidence and
“is, at bottom, a source of ‘assistance’ to the JCC”).

“Although section 440.29(1), Florida Statutes (2008) (stating
a JCC shall not be bound by technical or formal rules of procedure),
permits a JCC more latitude than judges of general jurisdiction,
neither this section nor any other provision in the workers’
compensation law, excepts workers’ compensation hearings from
the rules of evidence.” Amos v. Gartner, Inc.,
17 So. 3d 829, 833
(Fla. 1st DCA 2009) (citing Martin Marietta Corp. v. Roop,
566 So.
2d 40, 42
(Fla. 1st DCA 1990)). The principle that the rules of
evidence apply to workers’ compensation proceedings remains
viable and well-respected. However, the Legislature has carved out
an exception in section 440.25(4)(d), which by its plain language,
precludes application of Daubert to EMA reports and opinions
because they are admissible as a matter of law.

Here, the E/C raised a Daubert challenge to the admissibility
of the EMA report and testimony of Dr. Cameron. The JCC, having
determined that a Daubert challenge may be raised to EMA
opinions, considered the factors and determined Dr. Cameron’s
report and testimony were admissible. Accordingly, the JCC
ultimately considered the EMA opinions as dictated by section
440.13(9)(c) in reaching his determination of compensability, and
competent, substantial evidence exists to support the JCC’s
conclusion that the E/C failed to rebut the EMA presumption of
correctness by clear and convincing evidence. The appellate court
is required to affirm the lower tribunal if there is any basis in the

17
record to support the judgment on appeal. See Dade Cnty. Sch. Bd.
v. Radio Station WQBA,
731 So. 2d 638
, 644–45 (Fla. 1999);
Staffmark v. Merrell,
43 So. 3d 792, 795
(Fla. 1st DCA 2010)
(applying the “tipsy coachman” doctrine in a workers’
compensation case).

III. Conclusion

While the JCC erred in applying the Daubert standard to
determine admissibility of the EMA testimony and report, we find
it was harmless error. The EMA opinion was ultimately admitted
and properly considered by the JCC. As the case was bifurcated for
initial litigation of compensability, we remand for further
proceedings consistent with this opinion.

AFFIRMED and REMANDED.

ROBERTS and RAY, JJ., concur.

_____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

Hinda Klein and Jesse Dyer of Conroy Simberg, Hollywood, for
Appellants.

Kenneth B. Schwartz of Gordon & Partners, P.A., North Palm
Beach, for Appellee.

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