Posted on October 23, 2008 by David McCranie

Independent Medical Examiner Can Be an Authorized Treating Physician

The JCC did not err in ordering the E/C to provide continuing medical care to the claimant through a physician which the claimant had previously designated as his "independent medical examiner."  That was the First DCA's holding in Protocol Communications, Inc. v. Andrews, decided on 9/26/2008.

 

Section 440.13(5)(a), Fla. Stat., provides in part that "[t]he independent medical examiner may not provide followup care if such recommendation for care is found to be medically necessary."  In Andrews, the employer had initially accepted the compensability of the claimant's accident but later reversed its position and denied further benefits.  Thereafter, the claimant obtained medical treatment on his own, and he designated that physician as his "independent medical examiner" in his subsequent claim against the E/C.  Andrews ultimately prevailed in his claim, and the JCC ordered the E/C to provide ongoing medical care through his independent medical examiner/treating physician. 

 

Affirming the JCC, the First DCA pointed to other language in the statute which states that "[i]f the parties agree, the [independent medical] examiner may be a health care provider treating or providing other care to the employee."  Although the parties did not agree, the court noted that neither did the E/C object to the designation of the doctor as an independent medical examiner.  The court also noted that because the carrier had failed to furnish necessary medical treatment, the claimant was entitled to obtain appropriate treatment on his own.  "The subsequent designation of that doctor as the claimant's independent medical examiner," said the court, "whereby his testimony could be presented at the hearing, does not negate his status as the treating doctor."

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Posted on October 23, 2008 by David McCranie

"One Time Change of Physician", "Expert Medical Advisors", and "Major Contributing Cause"

When the claimant's treating physician opines that the claimant's industrial accident is no longer the "major contributing cause" of her ongoing medical problems, is the claimant entitled to a "one-time-change-of-physician" in order to obtain a contrary medical opinion?  Yes, said the First DCA in Dawson v. Clerk of the Circuit Court - Hillsborough County, reversing the JCC who had concluded that in such circumstances the claimant's only recourse is to request an "independent medical examination."

 

In the same case, at the E/C's request the JCC had appointed an "expert medical advisor" to resolve a conflict between two physicians on the issue of whether the claimant's industrial accident was the "major contributing cause" of her shoulder injuries. [Section 440.13(9) authorizes the appointment of an expert medical advisor ("EMA") when there is conflict in the medical testimony].  The EMA had concluded that the claimant's shoulder injuries were not caused by her accident, and accordingly the JCC denied any treatment for those problems.  But the First DCA reversed, holding that an EMA should never have been appointed in the first place because in fact there was never any "conflict" in the medical testimony.  The court noted that the physician who gave the allegedly conflicting opinion on the issue of causation (1) had not been authorized by the carrier to treat the shoulder, (2) never examined the claimant's shoulder, and (3) did not review any diagnostic studies or or medical records pertaining to the claimant's shoulder.  Under these circumstances, there was insufficient evidence of a "conflict" on the issue of causation.

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Posted on January 28, 2008 by David McCranie

First DCA: Employer/Carrier Must Provide Independent Medical Examination

"In any dispute concerning overutilization, medical benefits, compensability, or disability benefits under this chapter, the carrier or the employee may select an independent medical examiner."  So begins §440.13(5), Fla. Stat.  Nelis Pena, an injured worker, filed a petition for benefits claiming entitlement to various disability benefits under the Florida Workers' Compensation Law and subsequently filed this Motion to Compel the Employer/Carrier to provide a psychiatric independent medical examination ("IME").  The JCC denied the motion, and Pena therefore filed this petition for writ of certiorari with the First District Court of Appeal.  According to the argument contained in the petition, the Employer/Carrier had argued that the Claimant was not entitled to an IME because there was no "dispute" concerning either "overutilization, medical benefits, compensability, or disability."  In any event, the Employer/Carrier confessed before the First District Court of Appeal that the JCC had committed error, and the Court therefore granted the petition in a short opinion dated 1/23/2008.  Pena v. Tampa Maid Foods, Inc.
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