By Michael Rabinowitz
Banker Lopez Gassler

Just last week, I wrote about the 1st District Court of Appeal oral arguments, presented at the annual Florida Workers' Compensation Institute convention in Orlando. Specifically,  I focused on the McGraw oral arguments.

McGraw dealt with an employer carrier (E/C) wanting an independent medical exam without claimant filing a petition for benefits. I predicted (or rather hoped) that the court would rule that an E/C could seek an IME before the filing of a PFB. This would solve the wink-wink dance that E/C’s have to do to initiate an IME:

“And there is a kabuki style dance we as E/C’s must perform to get our IME if there is no pending PFB. The most common – and safe – way to do this is the claims professional sends the file to a peer-review doctor (usually out of state) and he determines that there is no medically necessity to the treatment the authorized physician recommends or there is over utilization. This peer review report is not exactly admissible since it is not an authorized doctor.

From there, the E/C denies treatment based on the peer review report.  Then, claimant files a PFB. And, then the E/C can seek an IME.  It all seems pointless, doesn’t it?
 
I hoped for a better procedure, where the E/C can obtain an IME whenever it disagrees with a doctor’s opinion (like claimants can) thereby preventing the procedure where claimant must be cut off. This tactic would reduce litigation, promote settlement, and at the very least put injured workers on notice of any potential disruption in their benefits.

Now, the 1st DCA ruled, in a case other than McGraw, that cutting a claimant off is the only way an E/C can get an IME.

Huh?

In Lehoullier v. Gevity, claimant suffered a compensable accident. After a mediation, where there parties resolved all of the pending PFB’s, the E/C motioned the judge to compel claimant to attend an IME. The reason? The E/C became concerned over claimant’s psychiatric condition and the longevity of his medical care.

Claimant argued that there was no “dispute”, per s. 440.13(5)(a), between the parties since they just resolved all of their claims at mediation and there were no pending PFBs. The judge disagreed and granted the IME since the E/C has a right under Section 440.13(2)(d) to transfer care if claimant is not making appropriate progress.

On appeal, the 1st DCA reversed, noting that the “dispute” is created when either the E/C denies a claim for benefits or when a claimant disagrees with an opinion of an E/C authorized doctor. An E/C cannot unilaterally declare a dispute just because it does not think claimant is making enough progress.

For an E/C to invoke Section 440.13(2)(d), it must first have a dispute. So, basically the court is saying an E/C must dance the dance and cut claimant off before it can get an IME that finds claimant is not making appropriate progress.  Simply having “unilateral speculative concerns” about claimant’s progress is not enough.

This may be a solution only the Legislature can devise, but I would think this just perpetuates continued litigation. A dispute can be a "unilateral" concern.  A dispute is not always a two-way street. And, if the E/C suspects that a doctor is overutilizing or claimant is not making appropriate progress, how else is the E/C going to find out? Cutting of a claimant just to get a PFB and then issue a denial is not exactly efficient or practical.

Unless the 1st DCA finds a new fact wrinkle in the McGraw case, I suspect this is it for pre-PFB IMEs. So, the Kabuki theatrics will continue.

Subscribers may download the Lehoullier v. Gevity decision by clicking the case title in the sidebar.

<i>Michael Rabinowitz is an attorney for Banker Lopez Gassler, a workers' compensation defense firm in Tampa. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com/</i>