Cases

Employer/carrier prevailed in claim filed by claimant.  Costs awarded against claimant which included one-half of a cancellation fee for the claimant's failure to appear at a scheduled Independent Medical Examination scheduled by the employer/carrier. The claimant actually showed up at the IME but brought with her, without prior notice, a videographer to record the examination, which she had the right to do.  The IME doctor refused to examine the claimant because of the presence of the videographer and accordingly, the examination was cancelled and a non-appearance fee was charged.  JCC determined that the claimant appearing at the IME with a videographer without notice constituted a constructive failure to appear for the IME and therefore costs were awarded for one-half of a "no show" fee under Section 440.34(3), Florida Statutes.  On appeal, case reversed in regards to the order requiring the payment of one-half of the no show fee.

A JCC should consider the statewide uniform guidelines for taxation of costs in civil actions in determining the taxation of costs in a particular proceeding.  But the guidelines are advisory and the JCC has broad discretion in determining the taxation of costs in a proceeding.  No show fees can be deemed a part of costs but if a claimant can show good cause for failure to attend an IME, no sanctions are awarded.  The JCC must also ensure that the cancellation fee was properly charged and the amount was appropriate under the circumstances.\

No show fees under Section 440.34(3), F.S., as a prevailing party cost.  There is no provision in this statutory section for a constructive failure to appear for an IME and accordingly, assessing costs for a constructive failure to appear is not provided for under the statute.  Under Florida Rule of Civil Procedure 1.360(a)(1)(A), there is a provision that if an examination is to be recorded or observed by others, advanced notice of such must be given. There is no corollary for this under the Workers' Compensation Rules or statutes.  Court determined that it was error to award costs since the claimant actually did show up for the IME.

JCC ruled that the claim for surgery made by the claimant was premature and there was no medical testimony from the authorized treating physician that such surgery was needed. On appeal, JCC's findings reversed. The employer/carrier waived any objections on the grounds of ripeness and specificity by not asserting that defense or moving to dismiss the claim. There was an IME opinion presented by the claimant's attorney indicating that surgery was needed for the claimant whereas the treating authorized doctor stated that surgery was not needed. Court determined that IME opinions are admissible and can support claims for specific medical benefits.

A decision in favor of the party without the burden of proof need not be supported by competent substantial evidence.  A JCC may reject in whole or in part even uncontroverted testimony the JCC disbelieves.

The employer/carrier's expert witness testified that the claimant's respiratory problems were related to the claimant's 17-year history of smoking rather than the claimant's alleged exposure to debris during the 11 days he worked for the employer.  It was asserted by the claimant that the claimant's IME doctor was not qualified to render such an opinion because he was not a board certifired internist or a pulmonologist.  The determination of a witness's qualifications to express an expert opinion is within the discretion of a trial judge whose decision will not be reversed absent a clear showing of error.  The court in this instance determined that the selection of an IME is not limited to a board certified physician.  The court also stated that there was no need for the testimony of the expert witness in this case to be a pulmonologist, a specialist in the treatment of respiratory disease. In this case, the employer/carrier's IME was a board certified occupational medicine specialist with extensive experience in exposure cases.  A witness may be qualified as an expert through specialized knowledge, training or education, which is not limited to academic, scientific or technical knowledge.  In this case, the doctor's extensive training and experience in exposure cases established his qualifications to opine on the disputed issues of causation.  

In the case of Heckford v. Florida Department of Corrections, 399 So. 2d 247(Fla. 1st DCA 1997), the court had excluded the admissibility of an IME report of a doctor whose opinion had been solicited exclusively and solely for litigation.  The court ruled that the McElroy case did not apply in workers' compensation cases.  There was no showing in this instance that the employer/carrier expert rendered an opinion outside of his areas of expertise as demonstrated by licensure and applicable practice parameters. Such opinion evidence would be prohibited under the specific IME provisions of Section 440.13(5)(a), Florida Statutes.

Section 440.13(5)(a), Florida Statutes, requires that parties selecting IMEs must notify all parties within 15 days of the examination in a proceeding before a JCC.  Claimant conceded that proper or timely notice was not given but argued that the requirement of notice is directory not mandatory.  JCC excluded IME report and this appeal followed.

Court affirmed decision of JCC excluding the IME tendered by the claimant's attorney.  Based on the plain and ordinary meaning of the statute, the word "shall" in a statute usually has a mandatory connotation.  In this instance, such a provision is not amenable to an exercise of discretion and accordingly, when there has been a failure to provide proper notice, it is mandatory that such evidence be excluded from being considered by the JCC.

Parties stipulated that the employer/carrier accepted compensability of a work related exposure and "building related illnesses associated with indoor air quality problems."  Medical care was authorized with a pulmonologist.  The JCC approved this joint stipulation by order.  Thereafter, the employer/carrier issued a Notice of Denial terminating all further medical treatment to the claimant. The decision to deny further medical care was based solely on a peer review report.  In the Notice of Denial, the employer/carrier asserted that the work accident was no longer the major contributing cause of the need for medical treatment. The employer/carrier's expert determined that the claimant had a vocal cord dysfunction unrelated to a workplace exposure and the claimant did not suffer from asthma and accordingly, the asthma medications prescribed by the pulmonologist was not payable. The authorized doctor disagreed with the IME's diagnosis.  

JCC entered order denying all claims. The JCC accepted the testimony of the employer/carrier's IME.  On appeal, court reversed.

Once a claimant has established compensability of an injury via a prior ruling or a stipulation, the employer/carrier cannot challenge the causal connection between the work accident and the injury.  The employer/carrier may only question the causal connection between the injury and the requested benefit.  The employer/carrier bears the burden of proof to demonstrate a break in the causation chain, such as the occurrence of a new accident or that the requested treatment was due to a condition unrelated to the injury which the employer/carrier had accepted as compensable.  A break is understood to occur when the work related cause drops to 50% or less of the total cause of the need for the requested benefit.  In this case, the employer/carrier did not assert that there had been any break in the chain of causation or provide evidence to support any such break.  By the employer/carrier's stipulation of compensability, the claimant was excused of the burden to re-establish causation.  The IME that was performed by the employer/carrier indicated simply that the doctor originally had misdiagnosed the claimant's condition, not that an unrelated condition was causing the current need for treatment. The claimant's symptoms had not substantially changed since the original compensable exposure agreed to between the parties.

Court determined that the 120-day rule for denying the compensability of the claim applied in this case and any denial of compensability after the 120-day period was ineffective.  The JCC basically had determined that there were material facts relevant to the issue of compensability that the employer/carrier could not have discovered through reasonable investigation within the 120-day period and therefore, the failure to deny compensability within this period of time would not preclude a subsequent denial of compensability.  Court found that the JCC could not have reached such a conclusion in the absence of a finding as to when the investigation should have begun. When the 120-day period begins to run is a factual determination.  The statute does not require that certainty exists before the investigation period begins to run. 

In this case, the claimant had a preexisting arthritic back condition. The surgical notes of the treating physician on a particular date should have reasonably been brought to the carrier's attention the fact that the claimant's personal condition preexisted the industrya accident thereby alerting to the necessity of beginning an investigation.  Yet, the employer/carrier failed to take any action within 120 days from such notice.  The court on remand mandated that the JCC determine when the employer/carrier had material facts relevant to the issue of causation that calls into question their obligations to the claimant to provide treatment, thus triggering the duty to immediately and in good faith commence an investigation of the employee's entitlement to benefits.

Certain medical evidence from a doctor that treated the claimant prior to the compensable accident was excluded from testimony concerning the compensability of this case.  The JCC's exclusion of evidence is reviewed for an abuse of discretion.  

Although medical opinion testimony admissible before the JCC can only be given by Expert Medical Advisors, Independent Medical Examiners, and authorized treating physicians, other medical testimony can be received as a factual report of the information contained in a doctor's office records regarding the claimant. That testimony can include a claimant's complaints, the doctor's diagnosis, and the prescribed treatment. In this case, a court determined that the JCC erred in denying the admissibility of evidence from physician as to the claimant's preexisting medical condition.  Dissenting opinion.

JCC admitted into evidence the testimony of the claimant's IME in establishing the compensability of a mold exposure case.  Court determined that JCC erred in admitting testimony from expert.  A JCC's decision to admit evidence is reviewed for abuse of discretion.

The court reaffirmed previous findings that the Florida Evidence Code applies to workers' compensation proceedings.  Court determined in this case that the claimant did not supply a sufficient evidentiary basis for concluding that claimant was exposed to mold in her workplace or that the mold exposure at work was the major contributing cause of the claimant's symptoms. 

The claimant's IME doctor improperly bolstered his opinions by the professional opinions and reports of others.  An expert's reference to other expert's opinions and publications as to occupational causation is relying upon incompetent evidence.  The IME of the claimant also bolstered his testimony with opinions of another doctor who he had talked to about such exposures.  Such reliance upon other doctors' opinions did not constitute a situation where the IME doctor relied upon his own independent opinion.  The court also determined that the IME doctor also relied on inadmissible medical records of the claimant's co-workers to bolster his opinion.  Such reliance is improper.

The court also determined that the IME testimony lacked a sufficient factual foundation to establish occupational causation.  There must be testimony as to the specific substance involved in the exposure at levels causing injury which the expert in this instance did not testify to.  

In conclusion, the JCC abused his discretion when he admitted into evidence the testimony of the claimant's IME doctor supporting occupational causation for the claimant's medical problems.

Claim filed based on allegations of exposure to mold in the workplace.  Claimant's IME doctor testified over the objection of the employer/carrier that in his medical opinion, the exposure to mold in the workplace was the cause of the claimant's developed symptoms including sinus infection, cough, voice loss, bronchitis, and swelling of the legs.  Claimant's IME doctor who expressed this opinion was a general practitioner with no specialized licensing in mold exposure or any related field and had never claimed to be an expert on mold related injuries or diseases. As a part of his research on the development of such symptoms, the claimant's IME doctor spoke with an infectious disease doctor in New York, who specialized in mold exposure and reviewed medical records of the clamant's co-workers who had similar symptoms.  The question in this case was whether the opinions of the claimant's IME physician were admissible. 

The decision to admit evidence is reviewed by the appellate court based on abuse of discretion.  The court determined that the JCC abused his discretion in admitting the expert testimony over the employer/carrier's objection because it was based on improper bolstering and lacked a sufficient factual foundation.  

The court determined that the claimant's IME opinion was improperly bolstered by the professional opinions and reports of others.  Improper bolstering occurs when an expert is used as a conduit for otherwise inadmissible evidence and the expert reaches an opinion by relying on the opinions and publications of other experts.  In this case, the IME doctor relied on several published articles.  In addition, the IME doctor's testimony was bolstered by his testimony that he relied upon the opinions of a New York based infectious doctor.  The doctor did not reach his opinion independently.  The doctor did not rely on his own independent opinion in making these determinations.  The doctor also relied on the inadmissible medical records of the claimant's co-workers to bolster his opinion.

In addition, the IME doctor's testimony lacked a sufficient factual foundation to establish occupational causation.  By statute, this medical opinion had to be based on clear and convincing evidence establishing that there was an exposure to the specific substance involved at harm causing levels.  The doctor was unable to determine which mold existed in the claimant's workplace and which mold caused the symptoms.

The JCC abused his discretion when he admitted the claimant's IME doctor's occupational causation opinion testimony into evidence.

Claimant's authorized doctor recommended a cervical fusion which was wrongfully denied by the employer/carrier.  Claimant therefore went to another doctor and had a different less intrusive surgical procedure.  The employer/carrier asserted that the less intrusive surgical procedure was not the major contributing cause of the claimant's on-the-job accident.  

An injured worker may obtain wrongfully denied medical treatment at the expense of the employer/carrier under the self-help provisions of Section 440.13(2)(c), Florida Statutes. Where this self-help provision applies, the JCC has the statutory authority to authorize a doctor for care provided during the period of wrongful denial.

The claimant's burden under the "self-help" provision of Section 440.13(2)(c) is to show that the surgery that he actually received (a different surgery than what the authorized doctor recommended) was compensable, reasonable, and medically necessary.  In this case, no medical testimony concerning the cause and medical necessity of the less invasive surgery received from the unauthorized doctor, the JCC only cited evidence of medical necessity based on the medical records from the self-help doctor.  This was error under 440.13(5)(e). 

Only opinions from authorized providers, Independent Medical Examiners, and Expert Medical Advisors are admissible in workers' compensation proceedings. The medical opinions of an unauthorized self-help doctor are not admissible unless and until it is established (by other admissible evidence and medical opinions) that the care rendered by the self-help doctor was compensable and medically necessary.  The self-help doctor's opinion on compensability and medical necessity cannot "bootstrap" itself into evidence. In this case, the judge appeared to bootstrap records of the self-help provider because no other admissible evidence existed that the claimant's surgery was compensable and medically necessary.

The JCC accorded a presumption of correctness to the Expert Medical Advisor (EMA) with regard to the claimant's need for attendant care.  It was asserted on appeal that the presumption of correctness was inappropriate in this case because of the fact that the evidence did not demonstrate a sufficient disagreement in the opinions of the health care providers.  The employer/carrier's Independent Medical Examiner did not render a definitive opinion as to whether attendant care benefits were medically necessary at the time of the hearing or whether the need for attendant care was caused by the compensable accident. The court determined that the JCC should have considered the EMA's testimony regarding claimant's need for attendant care without the presumption of correctness ordinarily given to an EMA opinion.

JCC assessed a "no show" fee for the claimant's failure to appear for an Independent Medical Examination scheduled by the employer/carrier.  On appeal, this award was reversed because of the non-compliance by the employer/carrier with the statutorily imposed notice requirements for making such appointments.  

Section 440.13(5)(c-d), Florida Statutes, require the employer/carrier to confirm the scheduling of an IME with the claimant and the claimant's counsel at least 7 days before the date of the IME.  Claimant's attorney was notified of the appoinment less than the 7 day time period.  Accordingly, it was error to award the no-show assessment.

In addition to the no-show fee, the claimant was required to pay an additional $1,000 for the doctor to review medical records prior to the deposition that was ultimately cancelled.  The award of specific costs is reviewed by the appellate court based on abuse of discretion.  On appeal, the court denied the cost award of $1,000 for medical records review.  It was not part of the no-show fee and accordingly was not awardable on that basis.  There was no other basis for the award of such a cost since there was no evidence that the doctor actually reviewed the medical records.

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.

JCC denied the claimant's Motion for the Appointment of an EMA because the motion filed by the claimant was untimely and there was no disagreement between medical opinions because one opinion had an insufficient foundation.  On appeal, decision of JCC reversed.

One of the conflicting medical opinions was based on an independent medical examination that was completed only on a records review and not by an individual evaluation by the doctor of the claimant.  Court determined that an IME based on paper review only constituted competent and substantial evidence to be considered by the JCC. The paper reviewed IME had a solid foundation.  Even though the doctor did not review the two most recent medical notes from the authorized doctor, that did not make this IME doctor's review "incomplete" on the facts in this case.  The records that were not reviewed by the IME doctor did not concern the issue under review.

There are no statutory deadlines for filing EMA requests. The only deadline is found in caselaw and that is that the request for an EMA should not be "unreasonably delayed" once the party is aware of a disagreement.  A request for the appointment of an IME is not the only way to bring the need for an EMA to the JCC's attention. The JCC can sua sponte appoint an EMA.  A party that requests an EMA must pay for it; in contrast, if a JCC sui sponte appoints an EMA, the cost falls on the employer/carrier.  Accordingly, a claimant, to preserve his appellate rights, may give notice of the need for an EMA without actually requesting an EMA by motion thus either ensuring the appointment of an EMA or preserving the error. See Banuchi v. Department of Corrections, 122 So.3d 999(Fla. 1st DCA 2013).

In this case, the claimant's attorney filed two "Banuchi notices" before filing a motion requesting an EMA.  Court determined on appeal that there was not an unreasonable delay in filing the motion for the appointment of an EMA in this instance. The court ruled that the first Banuchi notice cured any timeliness problem because the purpose of an EMA request is not to give the opposing litigant notice but to inform the JCC of her mandatory duty early enough not to disrupt the orderly proceedings.

Under the facts in this case, the claimant's EMA request was timely and the disagreement between the doctors concerning the extent of the claimant's permanent physical impairment rating required the appointment of an EMA. The JCC erred in not appointing an EMA.

Court determined that JCC had statutory authority to compel an Independent Medical Examination of the claimant.  Such jurisdiction is authorized using the JCC's investigatory power provided for in Section 440.29(1), Florida Statutes.

Claimant filed a Petition for Benefits seeking the payment of attendant care benefits for care rendered by the state of Florida during a period of incarceration.  An order had been entered that determined that maximum medical improvement had been reached and the claimant was entitled to medical and indemnity payments including attendant care that was in the nature of remote surveillance or oversight.  Following the order, the claimant was incarcerated and it was during these periods of incarceration that attendant care was being sought.  JCC entered an order based on a motion filed by the employer/carrier compelling the claimant to submit to medical treatment.

On appeal, the order compelling medical treatment was reversed.  The evaluation ordered by the JCC had no connection to or bearing on the sole issue pending before the JCC which was whether supervision of the claimant provided by the state during periods of the claimant's past incarceration constituted the type of attendant care ordered to be provided to the claimant.  Writ of Certiorari granted since the claimant had demonstrated irreparable harm in the order entered by the JCC that could not be corrected in post-judgment appeal.

Employer/carrier scheduled an Independent Medical Examination for the claimant.  On the morning of the appointment, the claimant's attorney for the first time told the doctor that the claimant would be accompanied by a videographer.  The doctor declined to conduct the IME in the presence of a videographer without an additional advance payment of $1,500.  The payment did not get resolved by the time of the examination and when the claimant arrived with a videographer, she was turned away by the doctor. The doctor billed the employer/carrier a cancellation fee (no-show fee) of $600 for the missed examination.

Section 440.13(5)(d), Florida Statutes (2012), requires the injured employee to reimburse the employer/carrier half of the no-show fee if the employee fails to appear for the IME scheduled by the employer/carrier without good cause. Upon the employer/carrier's Motion to Tax Costs against the claimant, the JCC found claimant's announcement regarding the videographer was untimely and accordingly, the JCC ordered the claimant to pay the employer/carrier $300 as one-half of the doctor's no-show fee.  The JCC also found that he had no jurisdiction to address the reasonableness of the $1,500 charge (and also that the claimant had no standing to challenge this charge).  Nevertheless, the JCC directed the claimant be responsible for any additional physician fees assessed by the employer/carrier's IME because of the videographer being present.

On appeal, the JCC's determination that he had no jurisdiction to determine the reasonableness or propriety of the $1,500 charge was reversed.  The JCC does have jurisdiction to determine the appropriateness of the doctor's IME charge in reviewing a nonfinal order adjudicating jurisdiction and a review of this nonfinal order is pursuant to Florida Rule of Appellate Procedure 9.180(b)(1)(A). In reviewing nonfinal orders, appellate review is only limited to those appealable portions of such order which are appealable.

There is no question that the claimant is entitled to have a videographer at the IME.  Likewise, there is no dispute that the claimant is responsible for paying the charges assessed by the videographer.  The question in this case was who was responsible for paying the additional $1,500 charge assessed by the doctor simply because the claimant was having a videographer present during the IME.  The JCC determined that the claimant was responsible for the additional doctor-imposed charges.  The JCC determined that the claimant was responsible for additional doctor-imposed charges but he disclaimed any jurisdiction to determine the reasonableness or appropriateness of the charge in this case.  The court determined that this was the error in his order.  The JCC does have jurisdiction to determine whether the doctor's requirement of the $1,500 advancement payment for the presence of a videographer at the IME was reasonable and appropriate under the law or if that charge was unreasonable or not allowable under the law.

A physician undertaking the role of an IME is not at liberty to demand that payment be made on his or her terms but is instead regulated by statutory mandated reimbursement standears.  See Section 440.13(12)(d), Florida Statutes, and also the Workers' Compensation Healthcare Provider Reimbursement Manual, 2008 Edition, Section VII F.2 and 1.2 at 20-22.   The JCC may enter protective orders or other orders setting the parameters of discovery and under Section 440.33(1), Florida Statutes, in carrying out his duties, can resolve disputes as to whether the doctor's $1,500 advance payment was appropriate and chargeable.  The JCC is required to exclude the medical opinions of a purported IME physician who refuses to be bound by the proper legal billing process for such services under the workers' compensation law.

Case remanded to the JCC to determine the propriety and reasonableness of the doctor's additional in-advance video fee.  After determining the reasonableness of the fee, the JCC can then determine a) whether the claimant should be assessed half of the doctor's no-show fee under Section 440.13(5)(d) and, (b) which party, if any, is responsible for payment of the doctor's videographer fee at any future IME.  

JCC granted employer/carrier's motion to compel an independent medical examination (IME).  Claimant file a writ of certiorari to review the order.

To obtain a writ of certiorari, the claimant must show that there has been 1) a departure from the essential requirements of the law, 2) resulting in material injury for the remainder of the case 3) that cannot be corrected on post-judgment appeal.  Claimant objected to the independent medical examination itself and the choice of independent medical examiners. 

In regards to the IME, the claimant asserted that since there was no dispute, the granting of an IME was not authorized under Section 440.13(5)(a), Florida Statutes (2003).  The court found, however, that there was a dispute since the claimant had filed a claim for indemnity benefits which was still pending and which the employer/carrier was contesting.

The claimant also objected to the examiner based on the fact that the employer/carrier had already selected its independent medical examiner.  Court found that this argument had merit and concluded that each party was allowed to have one independent medical examiner (one single doctor) per accident.  Exceptions to this rule are as found in Section 440.13(5)(b) in which an alternate examiner can be utilized.  In this case, the employer/carrier did not cite any exception to the one independent medical examiner rule. 

The employer/carrier was seeking a different doctor to perform an IME in substitution of a doctor that had previously been designated as the IME doctor.  There was no evidence in the record to support the granting of an alternate IME.  Where there is a dispute in the material facts undergirding a party's request for an IME, evidence is necessary to support the awarding of an IME.

Employer/carrier filed Motion to Compel an IME of the claimant.  It was the employer/carrier's burden to establish the factual and legal basis for this examination. 

In order to obtain an independent medical examination (IME) as requested by the employer/carrier in this instance, there must be a "dispute" wich is a condition precedent.  Because no petition for benefits had been filed, there was no dispute and accordingly, the employer/carrier was not entitled to an IME.

The employer/carrier had alleged that there was a need for an IME in order to determine if there was overutilization of care.  The employer/carrier in this instance had alleged that the claimant had been provided treatment by the doctor under utilization review who had prescribed eight different medications at the same time.  Court determined that this did not constitute a prima facie case for overutilization.  In addition, the employer/carrier's assertion of concern for the claimant's lack of progress of care from the physician was insufficient to demonstrate a dispute authorizing an IME.  The employer/carrier must present some evidence to demonstrate that it is in fact engaged in the statutory utilization review process.  Argument and assertions by counsel are not evidence sufficient to demonstrate the existence of a dispute.  Simply expressing unilateral speculative concern over a claimant's progress with an authorized physician is insufficient to create a medical dispute warranting an IME. 

Based on Petition for Writ of Certiorari filed by the claimant, court determined that the JCC departed from the essential requirements of law in compelling the claimant to attend a physical exmination without evidence of a dispute. 

This case determined taxable costs to be awarded the prevailing party (employer/carrier in this instance) in workers' compensation proceedings.  The award of specific costs is reviewed on appeal for abuse of discretion.  To the extent that such resolution requires statutory interpretation, the appellate court's review is de novo.

Section 440.13(10), Florida Statutes (2007), allows for a health care provider to provide depositional testimony and charge $200 per hour.  $200 per hour is the maximum that can be obtained as a cost reimbursement.  The $200 per hour reimbursable amount only applies to physicians that provide actual services.  This includes physicians performing IMEs non-refundable reservation fees charged by physicians in excess of the actual time giving or preparing for a deposition are not reimbursable costs.

For doctors that testify as to the provision of professional services that were unrelated to the workers' compensation case, their fees/costs are capped at $200 per day.  Two doctors that testified in this case were described as being "fact" witnesses.  Fees for these doctors' depositional testimony for determining taxable costs are capped at $200 per day.  On the other hand, if they were authorized treating providers or IMEs, their fees in determining costs would be computed at $200 per hour.

All depositions of the claimant whether taken before the filing of an actual Petition or regardless of whether they were used as evidence at the time of the hearing, are taxable.  The employer/carrier's attorney testified that all depositions were taken for reasonable discovery purposes.  A condition for the reimbursement of costs is not that the deposition of the claimant must have been admitted into evidence.

Only "no show" fees charged by IME doctors are reimbursable as costs.  A claimant is not liable for a "no show" fee charged by an authorized provider.  These charges are more in the nature of claims costs rather than litigated costs.  In addition, a claimant is not responsible for a records review made by the doctor.  See Section 440.13(3)(g), Florida Statutes (2007).

The IME doctor in this instance charged a non-reimbursable fee for reserving time for an updated IME.  Court determined that this was not a reimbursable cost.  There is only a fee for a "no show" charge for the actual IME.

Treating authorized physician in 2006 indicated that the claimant needed an evaluation by a cardiologist.  JCC denied evaluation since there was no current evidence indicating a need for such an evaluation.  On appeal, court reversed.  There is no legal authority that indicates a recommendation or referral from an authorized doctor can become stale in the absence of a change in the claimant's condition that would affect the need for the recommended evaluation.

Report from independent medical examiner was not properly authenticated and therefore, was not allowed to be considered as evidence in proceedings before JCC.  The exception to authentication provided by Section 440.29(4), Florida Statutes, does not apply to independent medical examinations; The exception only applies to authorized treating physicians reports/records.  See Tutor Time Child Care Learning Centers v. Patterson, 91 So. 3d 264.  Because the IME report should have been excluded from evidence, a vocational expert's opinions based on the excluded medical report should also have been excluded.

JCC granted employer/carrier's Motion to Compel claimant's attendance at an IME.  On appeal, court granted certiorari review of the order determining that the order departed from the essential requirements of law and claimant would suffer harm not remediable on appeal should the exam go forward.

At the time the motion was filed and at all relevant times, there was no pending petition.  It was never alleged that any benefits had been denied by the employer/carrier to the claimant.  The issue according to the Motion for IME was whether there was an excessive permanent impairment rating and work the extent of reasonable restrictions as determined by the treating physician.  Court determined since there was no "dispute," the JCC did not have jurisdiction to enter an order granting the motion.  The claimant had not requested any benefits or medical treatment that the employer/carrier declined to provide.  To create a dispute, an employer/carrier is required to deny the claimant's request for medical treatment or other benefit.  Simply expressing unilateral speculative concerns over a claimant's progress of recovery from an authorized physician is insufficient.  In determining whether there was a dispute, the relevant inquiry is whether the employer/carrier denied a benefit requested by the claimant.  Since there was no such denial, there was no dispute and accordingly the JCC did not have jurisdiction to enter the order granting the motion for an IME.

The JCC lacked jurisdiction to enter an order compelling the claimant to attend a functional medical evaluation. (The court did not decide whether a functional medical evaluation is identical to an independent medical examination.)  There was no pending claim for benefits, no statutory authority for an FME per se within Chapter 440, Florida Statutes, and there was insufficient proof that the FME in this case was "medically necessary" as that phrase is used in Section 440.13(2)(a), Florida Statutes. 

A claimant always has a right to reject medical assistance although the consequences may include forfeiture of certain workers' compensation benefits.  See for example 440.13(5)d, Florida Statutes (2006). 

Authorized doctor opined that the claimant's carpal tunnel syndrome was not work related.  Notwithstanding this opinion, the employer/carrier obtained an IME who testified that the carpal tunnel syndrome was caused by work.  An expert medical advisor was appointed as requested by the employer/carrier and the EMA determined that the carpal tunnel syndrome was not related to the work of the claimant.  The JCC denied benefits based upon the EMA opinion.

The claimant objected to the appointment of an EMA arguing that the employer/carrier was bound by the opinion of its IME physician.  See Section 440.13(5)(b), Florida Statutes.  Claimant's argument was rejected by the JCC and affirmed by the appellate court.  JCC did not err in appointing EMA and denying benefits based upon the opinion of the EMA.  In this instance, the employer/carrier was not bound by the opinion of its IME doctor.  Concurring opinion.

JCC erred in rejecting the IMEs unrefuted medical testimony that the claimant should remain off work from the date of accident until she received medical care.  In effect, the IME determined retrospectively for periods of time prior to the date of the evaluation that the claimant could not perform work activities.

The failure to object to the testimony of the IME at the time of the doctor's deposition based on the amount the doctor charged for his depositional testimony resulted in the waiver of any argument directed thereto on appeal.  Objection to a doctor's status as an IME must be made at or before the time the medical opinion testimony is rendered.  The court did not reach a decision on the issue of whether an IME loses this status upon charging an impermissible amount for depositional testimony.

JCC in order awarded the payment of medical bill and on appeal court determined that claimant failed to establish an evidentiary basis for the payment of such bills by the employer/carrier.  Case remanded to the JCC for additional proceedings to establish the compensability of such medical bills.  The court specifically stated, however, that in future cases, where the party with the burden of proof fails to establish an evidentiary basis for benefits awarded, a simple reversal will be the appropriate remedy (as opposed to remanding the case to the JCC for further proceedings) absent an exceptional legal or factual basis warranting a contrary result.  The court noted that the mere introduction into evidence of medical bills may not be sufficient to prove entitlement.  Concurring opinion.

JCC entered an order compelling the claimant's attendance at a neuro-psychiatric IME.  On appeal, court determined that there was no statutory authority supporting this order compelling claimant's attendance at the IME.  Under Section 440.13(5)(a), Florida Statutes, an IME is permitted if the facts disclose a dispute concerning over utilization, medical benefits, compensability, or disability.  Under this provision, the only condition required for a party to request an IME is a dispute.  In this case, there was no dispute between the parties since the claimant had not requested any benefit or medical treatment that the employer/carrier declined to provide.  A dispute did not arise by the employer/carrier's expressing concern over the claimant's progress with the physician it authorized to treat the claimant's injuries.  See Section 440.13(2)(d), Florida Statutes (2007).  To create a dispute concerning medical benefits, an employer/carrier is required to deny a claimant's request for medical benefits.  Simply expressing unilateral speculative concerns over a claimant's progress with an authorized physician is insufficient.

The question in this case is whether Section 440.13(5)(a), Florida Statutes, permits a claimant who previously obtained an IME on the issue of compensability to have a subsequent IME on the issue of maximum medical improvement.

The only condition required for a party to request an IME under Section 440.13(5)(a). Florida Statutes, is a "dispute."  When a dispute arises, the claimant or the employer may request an IME.  Each party is entitled to an IME for each covered dispute during the life of a claim so long as it is performed by the same examiner.  (See exceptions to the same examiner performing the IME as found in Section 440.13(5)(b), Florida Statutes (2005).)  Since the dispute in this instance was different from the dispute when the prior IME was obtained by the claimant, a second IME was allowed in this instance. 

In accordance with Section 440.13(5)(e), Florida Statutes (2003), only medical advisors appointed by the JCC, an IME doctor, or an authorized treating physician can testify in proceedings before the JCC. However, when the employer/carrier wrongfully denies medical and the claimant is required to utilize the self help provisions of Section 440.13(2)(c), Florida Statutes, the JCC is not obligated to exclude the opinions of the doctors from whom the claimant was forced to obtain medical treatment. See also Florida Distillers v. Rudd, 751 So. 2d 754, 757 (Fla. 1st DCA 2000).

The employer/carrier has the right to authorize doctors from whom an employee is to receive treatment for a work related injury. When the employer/carrier fails to provide appropriate care, it surrenders to the injured worker the right to select a physician and obtain treatment, provided the care is compensable and medically necessary. When the employer/carrier fails to provide such care and requires the claimant to choose his own doctor, the doctor is allowed to testify in workers’ compensation proceedings. The claimant has the burden of establishing that he made a specific request for the care, allow the employer/carrier a reasonable time to respond, and obtained care that was compensable, reasonable and medically necessary.

The decision in this case allowing claimant's chosen physicians to testify applies only in those circumstances where the employer/carrier wrongfully withholds benefits. For instance, if an employer/carrier suspends benefits based on grounds of fraud or major contributing cause that was warranted and later proven to be correct, the care obtained by the claimant would not be compensable or awardable.

Employer/carrier asserted on appeal that since there were disagreements between two independent medical examiners regarding causation, the judge was obligated to appoint an expert medical advisor. However, the employer/carrier never requested that the judge appoint an expert medical advisor. Accordingly, this issue was not preserved for appeal. While the judge has an independent duty to appoint an expert medical advisor when the evidence calls for it, failure to do so does not constitute fundamental error and may not be raised for the first time on appeal.

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It is undisputed that a JCC may order an IME on his or her own motion. The court determined that the JCC did not err in allowing the claimant to introduce additional evidence following a post-hearing IME directed by the JCC. Additional evidence may be allowed if one of the parties is allowed or directed to submit additional evidence after the hearing. However, an IME ordered by the JCC is party-neutral in that it is not submitted at the behest of either party.

Court determined that JCC erred in denying temporary partial benefits for a designated period of time since the treating physician had released the claimant to return to work with restrictions and the claimant had limited his job search to only one contact. There was no record evidence, however, that the doctor had instructed the claimant to return to work. Evidence that the claimant is able to return to work is not sufficient to deny temporary benefits in the absence of evidence that the claimant was informed or should have known that he or she was released to work.

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Certiorari review by District Court of Appeals is allowed if the JCC orders a psychiatric MMI without statutory authority.

Court upheld the constitutionality of Section 440.13(5)(e), Florida Statutes, which excludes certain expert medical opinions from evidence that are not from an authorized treating provider, an independent medical examiner, or an appointed expert medical advisor. Court pointed out that it had consistently recognized and upheld the Legislature’s prerogative as to evidentiary issues in workers’ compensation cases.

On Motion for Rehearing/Clarification. Original opinion at 30 FLW D57. Prior opinion withdrawn. Claimant’s caretaker testified that she provided "on call" attendant care for periods in which she would call the claimant from work to check on her. Court determined that a caretaker cannot be compensated for providing attendant care for time spent outside of the claimant’s presence, even if the caretaker is considered "on call."

Not all attendant care services are compensable. Normally, only direct care that is medically necessary is compensable. Attendant care considered medically necessary includes bathing, dressing, administering medication, and assisting with sanitary functions. On the other hand, housekeeping, transportation other than to a doctor and other normal household duties that reflect on quality of life rather than medical necessity are generally considered gratuitous and not compensable. Household services may, in limited circumstances, be compensable if the caretaker (family member or not) substantially departs from his or her daily routine to provide care, or if the claimant is completely prevented from doing such activities on his or her own. No distinction was made in the judge’s order between time spent providing compensable care and non-compensable care. Case remanded to JCC to determine the amount of compensable care provided.
 

In non-managed care case, claimant filed for a second medical opinion. Employer/carrier argued that since this was not managed care, the claimant would only be entitled to an independent medical examination as provided for in Section 440.13, Florida Statutes, as opposed to a second medical opinion as allowed under the managed care provisions of Section 440.134, Florida Statutes. The employer/carrier did offer the claimant an IME in lieu of authorizing a second medical opinion.

Court determined that there is a difference between an IME and a second medical opinion. An IME is a means of obtaining expert medical testimony by the party requesting such. It is not a form of medical treatment. While an IME is useful in resolving disputes, it does not fall under the term "medically necessary remedial treatment care and attendance" that an employer/carrier must furnish under Section 440.13(2)(a), Florida Statutes. Claimant entitled to second medical ophnion even though a managed care arrangement was not in place.

The question as to whether the claimant ’s requests for a second medical opinion should be granted is a question of fact similar to any other request for remedial treatment as provided for in Section 440.13, Florida Statutes. The JCC must resolve such questions after an evidentiary hearing is held where the claimant bears the burden of demonstrating entitlement.

The court determined that the circuit court does have jurisdiction to enforce a final compensation order of a Judge of Compensation Claims. However, interlocutory orders, such as the one at issue, are matters which properly belong before the Judge of Compensation Claims who has the power to enforce his or her own interlocutory order. See Section 440.33, Florida Statutes. The employer/carrier had argued that pre-payment of fees is not permitted, only reimbursements, citing the Florida Workers

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Writ of Certiorari allowed in this case to review the JCC’s decision. In order to establish an entitlement to certiorari relief, a petitioner must demonstrate that the order under review departs from the essential requirements of law and that the order will cause irrepairable harm that cannot be remedied on plenary appeal. In this case, the claimant established the required element of irrepairable harm because the presence of the employer/carrier’s attorney at petitioner’s IME could not be undone on appeal.

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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.

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