Cases

As a general rule, a workers' compensation claimant has the right to have a court reporter present at his IME. In the event a party opposes the attendance of a court reporter, the party opposing attendance has the burden of proof to show why the examinee should not be entitled to the presence of a court reporter. The doctor must provide a case specific justification in an affidavit to support a claim that the presence of a court reporter at the examination would be disruptive. Once that burden has been met, the objecting party must establish in an evidentiary hearing that no other qualified physician can be located in the area who would be willing to perform the examination with the court reporter present.

In this case, the employer/carrier did not submit proof that the court reporter's presence at the examination would be disruptive and should not be allowed. The court further stated that IME physicians who charge in excess of the maximum allowable fee under rules adopted by the Division of Workers' Compensation pursuant to legislative directive is prohibited from testifying at a workers' compensation hearing.

The employer/carrier in this instance produced no evidence that they could not obtain a doctor to perform an IME within the $400 limit established by the legislature. Accordingly, fees in excess of the fee schedule could not be charged by the doctor for the IME.

Finally, the record did not support the additional charge proposed by the doctor to accommodate the presence of a court reporter at the examination, i.e., there was no evidence that the doctor's charge was reasonable and necessary. There was no statutory authority to support the award of costs by the JCC against the claimant except those costs incurred if the claimant fails to appear for an IME without good cause and fails to advise the physician at least 24 hours before the examination that he cannot appear.