Cases

Claimant filed a Request for a Certiorari Review of the Judge of Compensation Claims granting the employer/carrier's Motion to Compel her to attend a Functional Capacity Evaluation (FCE).  The JCC had ordered the FCE as being "medically necessary." In support of the motion, the employer/carrier had submitted medical records from the treating physician indicating that the FCE was medically necessary. 

In order to obtain a Writ of Certiorari, the claimant is required to show that the order was 1) a departure from the essential requirements of the law; 2) resulting in material injury for the remainder of the case, and 3) that cannot be corrected on post-judgment appeal.  The last 2 elements generally are considered together as "irreparable harm." 

In the context of compelled physical or psychiatric examinations, the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal.  Because in this instance the FCE contemplated that the claimant had to undergo physical endurance tests, the court found that the claimant had shown a material injury that could not be remedied on appeal which satisfied the element of irreparable harm.

In regards to whether the judge's order was a departure from the essential requirements of law, this occurs if the JCC orders an examination by an IME or EMA without the requisite statutory authority.  The controlling law in this instance was the 1988 statute which contained no provision for an FCE per se.  However, an FCE can be considered a medical benefit that the JCC could order the employer/carrier to provide under the authority of paragraph 440.13(2)(a), F.S., if the claimant had filed a claim for the FCE.  However, in this case, the claimant had not filed a claim for an FCE.  The claimant does have the right to reject medical assistance and there is no provision in the law to force an injured employee to undergo medical care. 

The court determined that arguably, an FCE is the equivalent of an IME and according to Section 440.25(6), F.S.(1987), there may have been a requirement that the claimant submit to a physical examination.  However, such a physical examination could be required if a claim for  indemnity benefits was being made which was not the situation in this instance.  In addition, the JCC did not designate or approve a duly qualified physician as required by this statutory provision.

Because the JCC in this instance did not have the requisite statutory authority to order an FCE, the order compelling the claimant to undergo an FCE was a departure from the essential requirements of law which will cause the claimant irreparable harm.  Accordingly, the order requiring the claimant to participate in an FCE was quashed.