Greetings,

In the last week I have received several questions about IME’s (Independent Medical Examinations) under 440.13(5).

The statute (below) gives the E/C the right to have ONE IME per claim (date of accident) regardless of the number of body parts claimed.   However:

• If your IME will put into their report or testify that they are “not qualified to render an opinion upon an aspect of the employee’s illness or injury which is material to the claim or petition for benefits” you can obtain a 2^nd IME to answer those issues/body parts.

• You can obtain an updated IME with the same doctor to address future issues.  For example, if the first issue is compensability, and then a year later it is over the medical necessity of surgery, you can send the claimant back to the same doctor (or arguably under the bullet point above, another doctor if the first IME isn’t qualified on that issue).

• Regardless, because it can cause litigation, be careful on when you decide to use your IME.

• Multiple dates of accident you get multiple IME’s, even if the claims are consolidated.

The other question I received was whether a “dispute” was required to even schedule an IME.   The statute does use the word dispute, but what exactly is a dispute is, shall we say, in dispute.   The Lehoulier case dealt with an E/C’s inability to compel a claimant to attend an IME without a dispute.  It seems to imply there must be something denied to be able to compel a claimant to attend.  Some JCC’s have even interpreted the case to mean there must be a pending PFB to compel attendance.

However, if you are challenging an aspect of a case, you can schedule an IME and the claimant can voluntarily attend.  It’s only if you must compel their attendance with a JCC that there must be a dispute.

fhttps://eraclides.com/wp-content/uploads/2022/11/Lehoulier.pdf

440.13 (5) INDEPENDENT MEDICAL EXAMINATIONS.—

(a) In any dispute concerning overutilization, medical benefits, compensability, or disability under this chapter, the carrier or the employee may select an independent medical examiner. If the parties agree, the examiner may be a health care provider treating or providing other care to the employee. An independent medical examiner may not render an opinion outside his or her area of expertise, as demonstrated by licensure and applicable practice parameters. The employer and employee shall be entitled to only one independent medical examination per accident and not one independent medical examination per medical specialty. The party requesting and selecting the independent medical examination shall be responsible for all expenses associated with said examination, including, but not limited to, medically necessary diagnostic testing performed and physician or medical care provider fees for the evaluation. The party selecting the independent medical examination shall identify the choice of the independent medical examiner to all other parties within 15 days after the date the independent medical examination is to take place. Failure to timely provide such notification shall preclude the requesting party from submitting the findings of such independent medical examiner in a proceeding before a judge of compensation claims. The independent medical examiner may not provide followup care if such recommendation for care is found to be medically necessary. If the employee prevails in a medical dispute as determined in an order by a judge of compensation claims or if benefits are paid or treatment provided after the employee has obtained an independent medical examination based upon the examiner’s findings, the costs of such examination shall be paid by the employer or carrier.

(b) Each party is bound by his or her selection of an independent medical examiner, including the selection of the independent medical examiner in accordance with s. 440.134 and the opinions of such independent medical examiner. Each party is entitled to an alternate examiner only if:

1. The examiner is not qualified to render an opinion upon an aspect of the employee’s illness or injury which is material to the claim or petition for benefits;

2. The examiner ceases to practice in the specialty relevant to the employee’s condition;

3. The examiner is unavailable due to injury, death, or relocation outside a reasonably accessible geographic area; or

4. The parties agree to an alternate examiner.

(c) The carrier may, at its election, contact the claimant directly to schedule a reasonable time for an independent medical examination. The carrier must confirm the scheduling agreement in writing with the claimant and the claimant’s counsel, if any, at least 7 days before the date upon which the independent medical examination is scheduled to occur. An attorney representing a claimant is not authorized to schedule the self-insured employer’s or carrier’s independent medical evaluations under this subsection. Neither the self-insured employer nor the carrier shall be responsible for scheduling any independent medical examination other than an employer or carrier independent medical examination.

(d) If the employee fails to appear for the independent medical examination scheduled by the employer or carrier without good cause and fails to advise the physician at least 24 hours before the scheduled date for the examination that he or she cannot appear, the employee is barred from recovering compensation for any period during which he or she has refused to submit to such examination. Further, the employee shall reimburse the employer or carrier 50 percent of the physician’s cancellation or no-show fee unless the employer or carrier that schedules the examination fails to timely provide to the employee a written confirmation of the date of the examination pursuant to paragraph (c) which includes an explanation of why he or she failed to appear. The employee may appeal to a judge of compensation claims for reimbursement when the employer or carrier withholds payment in excess of the authority granted by this section.

(e) No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.

(f) Attorney’s fees incurred by an injured employee in connection with delay of or opposition to an independent medical examination, including, but not limited to, motions for protective orders, are not recoverable under this chapter.

(g) When a medical dispute arises, the parties may mutually agree to refer the employee to a licensed physician specializing in the diagnosis and treatment of the medical condition at issue for an independent medical examination and report. Such medical examination shall be referred to as a “consensus independent medical examination.” The findings and conclusions of such mutually agreed upon consensus independent medical examination shall be binding on the parties and shall constitute resolution of the medical dispute addressed in the independent consensus medical examination and in any proceeding. Agreement by the parties to a consensus independent medical examination shall not affect the employer’s, carrier’s, or employee’s entitlement to one independent medical examination per accident as provided for in this subsection.

Sincerely,

Morgan Indek | Managing Partner