YVONNE E. REED, APPELLANT/CROSS-APPELLEE/PETITIONER,
v.
YVONNE E. REED, P.A./STATE FARM FIRE & CASUALTY INSURANCE COMPANY, APPELLEES/CROSS-APPELLANTS/RESPONDENTS

Fla. 1st DCA | 1994-10-17
No. 94-592
KAHN and MICKLE, JJ., concur.
643 So. 2d 1180 Florida District Court of Appeal, First District (1994) Positive Treatment
Cited by 16 cases

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Synopsis

In a workers' compensation case, the court reversed a judge's order requiring the employer/carrier to submit a list of three physicians from which the injured claimant could choose the examining physicians for independent medical examinations (IMEs). The court held that section 440.13(2)(b), Florida Statutes, grants the employer/carrier the unqualified right to select health care providers "of its choice" for IMEs, and that allowing the claimant to choose the physicians effectively gave her control over the carrier's expert witnesses.


Holding

The court held that section 440.13(2)(b) gives the employer/carrier the right to select health care providers "of its choice" for IMEs without the requirement that the claimant be permitted to choose from a list. Allowing the claimant to select the examining physicians from three names supplied by the carrier effectively gave the claimant control over the carrier's expert witnesses, which conflicts with the statute's plain language.


Headnotes

[1] An employer/carrier has the statutory right to select the health care provider of its choice to perform an independent medical examination.

[2] A Judge of Compensation Claims cannot grant a claimant the right to choose examining physicians from a list provided by the employer/carrier when the employer/carrier has…

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Key Quotes

“the E/C has the right to schedule an IME with a health care provider "of its choice" to assist in determining whether over-utilization by a health care provider has occurred and whether medical treatment is necessary”

Establishes the plain language of the statute granting the carrier unrestricted selection rights

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Facts & Procedural History

Yvonne E. Reed, an attorney injured in an automobile accident, filed a workers' compensation claim against her employer/carrier and also pursued an un…

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Opinion of the Court
VAN NORTWICK, Judge.

VAN NORTWICK, Judge.

Yvonne E. Reed (claimant) filed a notice of appeal/petition for writ of certiorari seeking review of an order of the Judge of Compensation Claims (JCC), which granted the motion of the employer/carrier (E/C) to compel independent medical examinations (IMEs). The E/C cross-appealed that portion of the order which required the E/C to submit a list of three physicians in each specialty to the claimant, who would then choose the examining physicians to conduct the IMEs. Pursuant to Florida Rule of Workers’ Compensation Procedure 4.160, this court declined to review the claimant’s appeal/petition for writ of certiorari but accepted jurisdiction of the E/C’s cross-appeal. We reverse that portion of the JCC’s order permitting the claimant to choose the examining physicians as it conflicts with section 440.13(2)(b), Florida Statutes (1993), which gives the E/C the right to select the health care provider “of its choice” to perform the IME.

Claimant, an attorney in solo private practice, was injured in an automobile accident, which she alleges occurred in the course and scope of her employment. In addition to her workers’ compensation claim against the E/C herein, she pursued an uninsured motorist claim in circuit court against State Farm Mutual Automobile Insurance Company, an automobile liability insurance carrier affiliated with the carrier in the workers’ compensation action.

In the circuit court action, claimant underwent IMEs with a psychiatrist, an orthopedist, and an internist. Thereafter, the E/C moved to compel IMEs by several specialists in this workers’ compensation action pursuant to section 440.13(2)(b), Florida Statutes (1993).1 The motion to compel states that the E/C is seeking the IMEs to determine whether over-utilization by a health care provider has occurred and whether treatment is necessary.

Claimant objected, contending she should not be required to have second independent psychiatric, orthopedic and cardiological medical examinations since the carrier should have the benefit of the examinations performed in the circuit court action. The E/C responded that the carrier in the circuit court action was a State Farm entity separate and distinct in corporate structure and operations from the carrier in this workers’ compensation action, and that the E/C’s request was not an attempt to obtain second IMEs of the claimant.

The JCC granted the E/C’s motion to compel claimant’s attendance at IMEs with a psychiatrist, cardiologist or internist, and orthopedic surgeon, among others. In addition, however, the JCC ordered the E/C to provide the claimant a list of names of three physicians from each of the IME specialties from which the claimant would choose the physicians to perform the examinations. Relying upon Roberts v. Ben Hill Griffin, Inc., 629 So. 2d 236 (Fla. 1st DCA 1994), and Farm Stores, Inc. v. Fletcher, 621 So. 2d 706 (Fla. 1st DCA 1993), the JCC in essence reasoned that, since section 440.13(2)(b) imposes a “reasonableness” requirement, giving the claimant the right to select the examining physicians from three names supplied by the E/C was a reasonable means to ensure the objeetiveness of the IME evaluations.2

Section 440.13(2)(b) clearly provides that the E/C has the right to schedule an IME with a health care provider “of its choice” to assist in determining whether over-utilization by a health care provider has occurred and whether medical treatment is necessary.3 By granting the party seeking the IME the choice of selecting the examining physicians, the statute effectively recognizes that such physicians are essentially expert witnesses of the party requesting the examinations. Adelman Steel Corp. v. Winter, 610 So. 2d 494, 505 (Fla. 1st DCA 1992).4 Thus, the JCC’s order, in effect, gives the claimant the right to choose the E/C’s expert witness.

It is true that this court employed a “reasonableness” standard in construing section 440.13(2)(b) in Roberts v. Ben Hill Griffin, Inc. and Farm Stores, Inc. v. Fletcher. These cases, however, merely require the E/C to invoke its right to conduct an IME in a reasonable manner and in a reasonable time. Specifically, the reasonableness requirement in those cases related to requiring a hearing on the motion to compel, and requiring timely action by the E/C in securing an agreed upon IME, respectively. Unlike the facts in Roberts and Farm Stores, here the record contains no competent, substantial evidence that the E/C is unreasonably seeking to invoke its rights to require an IME or that the E/C’s choice of physicians would result in an unobjective evaluation. Rather than imposing a reasonableness standard, the process of selection required by the JCC amounts to an undue limitation upon the E/C’s right to select the medical specialists of its choice to perform the independent medical examinations.

REVERSED.

KAHN and MICKLE, JJ., concur. . This statute provides in pertinent part:

The right to conduct an independent medical examination includes, but is not limited to, instances when the authorized treating physician has not provided current medical reports; determining whether overutilization by a health care provider has occurred; whether a change in health care provider is necessary; or whether treatment is necessary or the employee appears not to be making appropriate progress in recuperation. The employer or carrier has the right to schedule an independent medical examination with a health care provider of its choice, at a reasonable time to assist in determining this status. (Emphasis added).

. IME is defined in section 440.13(l)(c) to mean an IME is an objective medical or chiropractic evaluation of the injured employee's medical condition and work status.

. In their brief, the E/C have noted that section 440.13 was substantially amended in the 1993 legislative session. Ch. 93-415, § 17, Laws of Florida, effective January 1, 1994. However, the E/C have not made the argument that the newly enacted section 440.13(5)(a) is a remedial statute which governs disposition of this case, and therefore the applicability of the amended statute will not be addressed.

. While the passage of Chapter 93-415, § 17, Laws of Florida, effectively reversed the holding in Adelman Steel by establishing that:

[U]pon the request of the employer, the carrier, or the attorney for either of them, the medical records of an injured employee must be furnished to those persons and the medical condition of the injured employee shall be discussed with those persons....

Section 440.13(4)(c), Florida Statutes (Supp. 1994), the legislature did not provide that examining physicians act in any capacity other than a witness for the party requesting the IME. Thus, the conclusion of this court in Adelman Steel with respect to the expert witness status of such examining physicians remains viable.


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Citator

Cited By

  • Lombardi v. S. Wine & Spirits & Fireman's Fund, 890 So. 2d 1128 (Fla. 1st DCA 2004)
    …ieu of authorizing a second medical opinion. The E/C’s offer, however, assumed no distinction between an IME and a second medical opinion. We have long recognized that an IME is a means of obtaining expert medical testimony. See, e.g., Reed v. Reed, 643 So. 2d 1180, 1182 (Fla. 1st DCA 1994) (“By granting the party seeking the IME the choice of selecting the examining physicians,[section 440.13] effectively recognizes that such physicians are essentially expert witnesses of the party requesting the examinations…
  • U.S. Sec. Ins. Co. v. Jeanni M. Cimino, 754 So. 2d 697 (Fla. 2000)
    …ion] is necessary by either party, the parties’ relationship is clearly adversarial, and a physician performing an IME should be treated as the requesting party’s expert witness.... ” Id. at 505. We recently reaffirmed this position in Reed v. Reed, 643 So. 2d 1180 (Fla. 1st DCA 1994). Id. at 1094. The First District also certified conflict with Klipper. The questions underlying the certified conflict between Cimino and Klipper are whether a PIP examination is adversarial in nature, making it analogous to ru…
  • Wal-Mart Stores, Inc. v. Liggon, 668 So. 2d 259 (Fla. 1st DCA 1996)
    …but on the requirement that the JCC have a hearing on the motion to compel, particularly when the motion does not set forth a statutory ground and does not contain [*264] any facts regarding the reasonableness of the request. Id.; see Reed v. Reed, 643 So. 2d 1180, 1182 (Fla. 1st DCA 1994). Further, this court has previously determined that the right to an IME is not without limits and section 440.13(2)(b) “seems to impose a ‘reasonableness’ requirement subject to the scrutiny of the JCC.” Farm Stores, Inc.…

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