A Claimant IME can Impose Work Restrictions Retroactively

Monday, June 27, 2011 | 0

By Michael Rabinowitz
Banker Lopez Gassler

With the state of independent medical examiners these days, it’s always wise to consider using one for your defense. After all, the limitations on how many you can have are lifted.

But, its important to also present evidence to combat claimant’s own IME doctors. Especially, when they present opinions regarding retroactive temporary benefits.

In Feacher v. Total Employee Leasing, Claimant appealed a denial of temporary total benefits by the judge of compensation claims. At trial she presented her own IME doctor who testified that claimant was at total temporary disability status as of the date of the accident forward.  The 1st District Court of Appeal reversed on the grounds the employer/carrier did not present any evidence to refute claimant’s IME. 

While the court focused on the deficiencies in the JCC’s order, I want to utilized this case as an opportunity to discuss retroactive disability testimony. Many employer/carriers believe that if there is no opinion regarding work status a new doctor or IME cannot retroactively put a claimant on disability status. They can.

A lack of opinion on work status happens all the time. Sometimes, an emergency room physician is more worried about the medical care than reporting work status. Other times, the doctor’s staff does not know how to complete a DWC-25 form. The court reasons that a doctor should be able to correct this error in subsequent testimony or in notes. There is also case law that if a doctor changes his opinion on work status and claimant does not know (like a doctor putting claimant to full-work status) then an employer/carrier might still have to pay benefits during the period claimant was unaware of the change.

It is important to review the authorized doctor’s medical records to secure work status so this does not become an issue later on, when your reserves may not be ready for such exposure. Think of obtaining work status from the doctor as important as obtaining the average weekly wage from the employer.

WorkCompCentral subscribers may read the Feacher opinion by clicking on the case title in the sidebar.

Michael Rabinowitz is an attorney with the Banker Lopez Gassler law firm in Tampa. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com