BERRY CORPORATION AND COMMERCIAL RISK MANAGEMENT, APPELLANTS,
v.
CHARLES EDWARD SMITH, JR., APPELLEE
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Berry Corporation and Commercial Risk Management appealed a workers' compensation order awarding Smith temporary partial disability benefits and related relief. The court reversed the requirement that the employer and carrier bear the expense of an independent medical examination ordered without conflicting medical evidence at the hearing, but affirmed the remainder of the order.
A judge of compensation claims may order an independent medical examination to assist in ascertaining the rights of the parties, but absent conflicting medical evidence submitted at the hearing, the employer and carrier cannot be required to bear the expense of that examination. The judge was authorized to rely on the independent medical examiner's opinion, which must be given the same consideration as other medical evidence.
[1] A judge of compensation claims is authorized to order an independent medical examination pursuant to investigatory powers.
[2] A judge of compensation claims may not order an employer or carrier to bear the expense of an independent medical examination in the absence of conflicting medical eviden…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In the absence of conflicting medical evidence submitted at the hearing, however, the judge may not order an employer or carrier to bear the expense of the independent medical examination.”
Establishes the key principle that cost-shifting for independent medical examinations requires a conflict in the medical evidence
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Join FLexlaw to unlock all legal intelligenceCharles Edward Smith, Jr., filed a workers' compensation claim. At the initial merits hearing, medical evidence was presented regarding the cause of S…
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ZEHMER, Judge.
Berry Corporation and Commercial Risk Management appeal a workers’ compensation order awarding Charles Edward Smith, Jr., temporary partial disability benefits, payment of outstanding medical bills, remedial treatment, care, and attendance through Dr. Melton, and costs. Only one of the issues raised on appeal requires discussion.
The employer and carrier argue that the judge of compensation claims erred as a matter of law in ordering an independent medical examination of the claimant in the absence of any conflict in the medical evidence presented at the hearing, and that, in light of that error, the judge erred in relying on the independent medical examiner’s opinion and rejecting the treating physician’s opinion regarding the cause of claimant’s medical condition. We do not entirely agree for the following reasons.
A judge of compensation claims is authorized to order an independent medical examination pursuant to his investigatory powers provided in section 440.29(1), Florida Statutes (1987).1 In the absence of conflicting medical evidence submitted at the hearing, however, the judge may not order an employer or carrier to bear the expense of the independent medical examination. § 440.25(3)(b), Fla.Stat. (1987).2 Sanlando Reprographics v. Vidimos, 545 So. 2d 397 (Fla. 1st DCA 1989); Amoco Container Company v. Singh, 418 So. 2d 395 (Fla. 1st DCA 1982); K-Mart Corporation v. Nasoni, 377 So. 2d 821 (Fla. 1st DCA 1979); Lu-Mar Enterprises v. Mazur, 8 FCR 248 (1974).
In this case, there was no conflict in the medical evidence presented at the initial merits hearing. Thus, the judge of compensation claims erred in ordering an independent medical examination to be performed at employer and carrier’s expense. The judge did not, however, err in ordering the independent medical examination to assist him in ascertaining the rights of the parties. Furthermore, the judge certainly was authorized to rely on the independent medical examiner’s opinion. See § 440.25(3)(a), Fla.Stat. (1987) (judge of compensation claims is to give the same consideration to the opinion of an independent medical examiner as that of the other physicians). Accordingly, we reverse the requirement that employer and carrier bear the expense of the independent medical examination, and affirm the remainder of the order. AFFIRMED IN PART and REVERSED IN PART.
BOOTH and WOLF, JJ., concur. . § 440.29(1), Fla.Stat. (1987), states in pertinent part:
In making an investigation or inquiry or conducting a hearing, the deputy commissioner shall not be bound by technical or formal rules of procedure, except as provided by this chapter, but may make such investigation or inquiry, or conduct such hearing, in such manner as to best ascertain the rights of the parties....
. § 440.25(3)(b), Fla.Stat. (1987), states in pertinent part:
... When there is a conflict in the medical evidence submitted at the hearing, the deputy commissioner may designate a disinterested doctor to submit a report or to testify in the proceeding, after such doctor has reviewed the medical reports and evidence, examined the claimant, or otherwise made such investigation as appropriate. The report of testimony of any doctor so designated by the deputy commissioner shall be made a part of the record of the proceeding and shall be given the same consideration by the deputy commissioner as is accorded other medical evidence submitted in the proceeding; and all costs incurred in connection with such examination and testimony may be assessed as costs in the proceeding, subject to the provisions of s. 440.13(4)(a)....
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S. Bakeries & Kemper Grp. v. Corwin Cooper, 659 So. 2d 339 (Fla. 1st DCA 1995)…t. (1991). The judge could also order a medical examination pursuant to section 440.29(1), Florida Statutes (1991), without a conflict in the evidence, but the employer/carrier were not obligated to pay for such an examination. Berry Corp. v. Smith, 576 So. 2d 1366 (Fla. 1st DCA 1991). By the time of the hearing in the present case, the Workers’ Compensation Law had been extensively revised. The judge’s investigative power under section 440.29(1) was unchanged, but the judge’s authority was somewhat altered w…
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Scotty's, Inc. v. Sarandrea, 645 So. 2d 121 (Fla. 1st DCA 1994)…non’s testimony or state an adequate reason for rejecting such testimony. As to the second issue, a JCC is authorized to order an IME pursuant to the investigatory powers provided in section 440.29(1), Florida Statutes (1991); Berry Corp. v. Smith, 576 So. 2d 1366 (Fla. 1st DCA 1991). A JCC may order an IME to assist the JCC in ascertaining the rights of the parties. Id. at 1368. However, if there is no conflicting medical evidence at hearing, the JCC may not order the E/C to pay the cost of an IME. § 440.25(…
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Roberts v. BEN Hill Griffin, Inc., 629 So. 2d 236 (Fla. 1st DCA 1993)…rules of procedure, but may do so in such manner as to best ascertain the rights of the parties. Ben Hill points out that this provision has [*238] been interpreted to mean that the JCC may order a claimant to submit to an IME, Berry Corp. v. Smith, 576 So. 2d 1366 (Fla. 1st DCA 1991), and argues that thus the JCC did not have to hold a hearing before entering the order herein. We find that Berry did not obviate the requirements of Fla.R.Work.Comp.P. 4.140(a) by its holding that section 440.29(1) authorizes t…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- K-Mart Corp. v. Nasoni, 377 So. 2d 821 (Fla. 1st DCA 1979)
- Amoco Container Co. & Amoco Oil Co. v. Mohabeer Singh, 418 So. 2d 395 (Fla. 1st DCA 1982)
- Sanlando Reprographics & State Farm Ins. Co. v. Vidimos, 545 So. 2d 397 (Fla. 1st DCA 1989)