FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D19-0813

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RANDSTAD NORTH 

AMERICA/ESIS WORKER’S 

COMPENSATION CLAIMS,

Petitioners,

v.

ALFRED BARR,

Respondent.

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Petition for Writ of Certiorari—Original Jurisdiction.

April 3, 2019

PER CURIAM.

In this workers’ compensation case, the Employer/Carrier 

(E/C) seek a “partial quashal of an order” appointing an Expert 

Medical Advisor (EMA) in which the JCC instructed the E/C to 

provide the EMA with the records and deposition of Dr. Charles 

Nofsinger. The E/C argued below that, because Dr. Nofsinger is

neither an authorized treating doctor, Independent Medical 

Examiner (IME), or EMA, his records and opinions are 

inadmissible and, thus, providing them to the EMA would cause 

them prejudice. 
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The JCC rejected the E/C’s argument, finding that the EMA 

statute, section 440.13(9)(c), Florida Statutes, provides that the

appointed expert is to have “free and complete access to the 

medical records of the employee” and does not include any 

restrictions or limitations on which records may be provided. The 

JCC also stated he was not making any findings regarding the 

admissibility of Dr. Nofsinger’s records, testimony, or opinions.

In their petition for writ of certiorari, the E/C argue that the 

JCC’s interpretation of the EMA statute is incorrect because it 

fails to consider that section 440.13(5)(e) limits admissible 

opinions to those rendered by authorized doctors, IMEs, and EMAs 

and, thus, an EMA can consider only admissible medical evidence 

in formulating an opinion. The E/C also argue that allowing the 

EMA to consider the purportedly inadmissible records and 

testimony from Dr. Nofsinger will result in irreparable harm 

because it will “be impossible to ‘unring the bell’ once Dr. 

Nofsinger’s inadmissible records are turned over, examined and 

considered by the EMA in formulating its opinion.” We disagree.

“It is well established that, in order to establish entitlement 

to certiorari relief, the Petitioner must demonstrate both that the 

order under review departs from the essential requirements of law 

and that the order will cause irreparable harm which cannot be 

remedied on plenary appeal.” City of Jacksonville v. Rodriguez, 851 

So. 2d 280, 282 (Fla. 1st DCA 2003). “Irreparable harm is a 

condition precedent to invoking certiorari jurisdiction, and so 

should be considered first.” Spry v. Prof’l Employer Plans, 985 So. 

2d 1187, 1188 (Fla. 1st DCA 2008). Long-standing precedent 

provides that “‘the time, trouble, and expense of an unnecessary 

trial are not considered ‘irreparable injury’ for these purposes.’” 

Rodriguez, 851 So. 2d at 282 (quoting State v. Lozano, 616 So.2d 

73, 75 (Fla. 1st DCA 1993)).

Here, regardless of whether the JCC’s decision to require 

furnishing Dr. Nofsinger’s records and testimony to the EMA was 

legally sound, the E/C have failed to establish the threshold 

requirement of irreparable harm. First, their arguments are based 

entirely on speculation; that is, they are assuming a) Dr. 

Nofsinger’s records and opinions are in fact inadmissible; b) the 

EMA will base any part of his opinion on those records and the 
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doctor’s testimony; c) the JCC will accept any such “tainted” 

opinion; and d) the JCC will rule against the E/C on the merits of 

Claimant’s claims. But even if any or all of these things occur, the 

E/C can still file a direct appeal of the resulting adverse final order 

and this court could then—if warranted—reverse and remand for 

a new trial (and perhaps appointment of a new EMA). Because of 

the E/C’s failure to overcome the primary threshold of irreparable 

harm, we dismiss the petition for lack of jurisdiction.

DISMISSED.

ROBERTS, RAY, and JAY, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Jay M. Levy of Jay M. Levy, P.A., Miami, and Marty E. Davis, of 

Legal Solutions Group, Fort Lauderdale, for Petitioners.

Alfred Barr, pro se, Respondent.