Tomaskovich: An IME is NOT a 'Benefit'

Saturday, June 4, 2005 | 0

Definitive ruling: an IME is neither "treatment" nor "a benefit" and therefore cannot trigger the running of the 120-day rule (among other things).

Anthony Tomaskovich, Et. Al., v. Andre LaPointe, Case No. 1D04-3318 (Fla. 1st DCA 5/27/05)

WHAT Has Happened: On May 27, 2005, the First District Court of Appeal issued a ruling in a challenge to a Judge of Compensation Claims (JCC) Order. The opinion is as clear-cut as it is helpful:

Where an IME is the only thing the doctor actually performed, such "evaluation" does not constitute "treatment" in any legal application where "treatment" may trigger other responsibility (e.g., in this case, the start of the 120-day "per pay and investigate" rule).

This is so even where the parties behave in an inconsistent fashion (in this case, describing the evaluation as the provision of a requested orthopedic evaluation). In other words; the Court will look to the thing that actually occurred and not what the parties "thought", said, or even stipulated occurred.

Practical Analysis: When an adjusted claim is strung out and involves more than one alleged injury - - and as such - - multiple petitions, keeping things straight can be an Adjuster's worst nightmare. This case helps.

Claimant thought E/C was "over a barrel" in petitioning for "back injury" after no denial followed within 120 days of an evaluation thought by both parties to have constituted evaluation for back injury. However, the evaluation that actually took place was clearly labeled IME.

The Court ruled: we will look at what was done, not what anyone says was done, i.e., evaluate substance over appearance, which is more often than not where we want to be at the end of the day anyway!

The holding clears up ambiguity in an earlier case which seemed to hold any "evaluation" triggers the 120-day rule (Osceola County v. Arace, 884 So.2d 1003 (Fla. 1st DCA 2004)). It's settled now: an IME does not. The holding also has wider applications than just "120-day" cases, i.e., statute of limitations cases!

Cautionary Note: This ruling can backfire if the opposite occurs, i.e., if the E/C thinks they are providing an IME but the doctor provides an element of treatment (which is not immediately challenged by the E/C), the Court will then say regardless of what the E/C thought it set up, "treatment" was what it provided. So, make sure your medical report is labeled correctly immediately on receipt and demand correction from the physician if it is not.

Bottom Line: An IME is not a benefit. This holding is a helpful clarification and useful claims tool. by H. George Kagan of the MKRS lawfirm. George can be reached by e-mail at GeorgeK@mkrs.com, or phone at 800.761.MKRS.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management. WorkCompSchool hopes to have this course, in addition to other courses authored by Mr. Kagan, in its curriculum shortly for MCLE and other professional continuing education credit purposes.