When the 2003 changes came into effect, many people looked at the fee provision as the biggest change.  But, in terms of everyday practice in Workers’ Compensation, the change to the IME provision had a profound effect.

Section 440.13(5)(a), was thought to limit each party to just one IME:

“In any dispute concerning overutilization, medical benefits, compensability, or disability under this chapter, the carrier or the employee may select an independent medical examiner.  The employer and employee shall be entitled to only one independent medical examination per accident and not one independent medical examination per medical specialty.”

While the intent of Legislature is clear–one IME per specialty only–the intent of whether a party could have just one IME examination per claim was left in doubt.  Many judges allowed “updated” IME’s upon motion of a party, if it was with the same doctor, especially when it had been years since the last IME.  However, the new(er) language of 440.15 is clear: “entitled to one independent examination per accident”. 

Therefore, many judges would deny updated IME’s for this very reason.  Until now. . .

In Gomar v. Ridenhour Concrete and Supply, Claimant alleged a compensable accident that the E/C promptly denied.  To prove his case, Claimant obtained an IME who concluded the work injury was the major contributing cause of Claimant’s disability.  Based on the IME, the E/C reversed course and acknowledged compensability and authorized a treating doctor.

Cut to 6 months later: the authorized treating doctors put Claimant at MMI with a 0% PIR.  Claimant filed a PFB for continued benefits which the E/C denied based on the opinions of the authorized treaters.  Claimant then underwent an “updated” IME with the same doctor at the outset of the claim.

At trial, the Judge excluded the updated IME’s testimony and report based on s. 440.13(5)(a) that parties can only have one IME per accident.

The First DCA reversed based on statutory construction.  Before the 2003 changes, parties could obtain IME’s for multiple specialties.  The Legislation intended to limit this.  But, the statute does not show the Legislature’s intent to limit the amount of IME exams.  The rationale being that a workers’ compensation claim can last years, during which time a Claimant’s condition can change and legal issues such as compensability, MMI, and impairment rating will come up.  To force a party to just one IME examination throughout the life of the claim would be absurd. 

The term IME is defined in the statute as a “physician selected by either an employee or a carrier to render one or more independent medical examinations in connection with a dispute.”   The statute allows IME’s in “any dispute.”  Therefore, the First DCA view that an updated IME is allowed whenever a new dispute arises between the parties. 

What does this mean for E/C’s?  Unfortunately, it means more litigation costs.  While its nice to know an E/C won’t “waste an IME” early in the claim and you can use the same IME doctor later on, expect Claimant attorneys to eat this case up.  If you are one of the few Carriers who still has a managed care arrangement, expect Claimant attorneys to choose an IME of that list and expect to have to pay for original examination and any “updated” ones.  Many Claimant attorneys are expected to litigate issues they gave up on simply because of the IME rule.

One important aspect of s. 440.13 the First DCA does not address is the “alternate” IME provision which allows for another IME examiner if the original IME doctor is “not qualified to render an opinion upon an aspect of the employee’s illness or injury which is material to the claim or PFB.”  Based on the Gomar decision, I expect one day the Court will revive the mulitple specialty IME.

Overall, this case does bring back some of a portion of the pre-2003 statutes that many of us have forgotten.  It makes me wonder what else the appellate courts could revive.

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