The Kabuki Dance Continues

Friday, September 14, 2012 | 0

Once again, the Florida 1st District Court of Appeal had the opportunity to review an employer/carrier's (E/C) right to compel an independent medical exam (without a pending petition) and once again the court practices form over substance.

In Bellamy v. Golden Flake Snack Foods, Inc., the claimant sought review of a judge’s order compelling her to attend E/C’s IME. There were no pending petitions, so the E/C filed a motion to compel for their IME.

In the motion, the E/C was very specific in its reasons for the IME; namely, it disputed the impairment rating set by the authorized doctors and overall disability. The judge granted the motion and the claimant appealed.

The 1st DCA relied upon the Lehoullier v. Gevity case in reversing the order compelling the IME. The court found there was no “dispute” between the parties and that the E/C must “create” the dispute: “To create a dispute concerning medical benefits, an E/C 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.”

I still don’t understand the rationale behind this. The only reason for a petition is for the claimant attorney to secure a future fee. If the E/C does not like the opinion of the authorized doctors, then a “dispute” has occurred. If the claimant can obtain a pre-petition IME, why can’t the E/C?

Instead the court requires the E/C to “create” the dispute. It seems completely inefficient and counter-intuitive to the purpose of Chapter 440 to force the E/C to deny the care, have claimant file a petition and then have the E/C file a response to that petition.

I’ll end with my quote from my blog post on the Lehoullier case two years ago:

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 over utilizing or the claimant is not making appropriate progress, how else is the E/C going to find out? Cutting off a claimant just to get a petition for benefits and then issue a denial is not exactly efficient or practical.

Until the Legislature acts, back to the kabuki theatrics!

Michael Rabinowitz is a shareholder with Banker Lopez Gassler, a workers' compensation defense firm in Tampa, Fla. This column was reprinted with his permission from his Workers' Comp Corner blog.