For a Comp nerd like me, the First DCA oral arguments is my second favorite part of the Convention, right behind Case Law Update.  For many practitioners, adjuster, and employers oral arguments are the best opportunity to see how chapter 440 is interpreted and shaped.

Tallahassee is a far drive for many of us, so whenever the First DCA goes on the road and opens their docket at the Convention, it is a delight.  As is every year, the Convention hosted two cases heard in front of two panels of judges.  I want to focus on the first one, McGraw v. Sauer, Inc., 1D10-791, and what effect it may have on an E/C’s right to seek an IME.

In McGraw v. Sauer, Inc., Claimant suffered a compensable accident to the mouth and required extensive dental work.  Claimant was happy with his claim, recieving timely benefits.  The E/C, however, was not happy and sought an IME (for reasons never fully explained at oral arguments).

Claimant objected to attending the E/C’s IME on the grounds that there was no “dispute,” namely Claimant never filed a PFB.  Section 440.13(5)(a) allows each party an IME when there is a dispute:

“In any dispute concerning overutilization, medical benefits, compensability, or disability under this chapter, the carrier or the employee may select an independent medical examiner.”
Since Claimant did not file a PFB, he alleged there was no dispute between the parties, therefore the E/C was not entitled to an IME.
This argument has been in place for years.  And there is a kabuki style dance we as E/C’s must perform to get our IME if there is no pending PFB.  The most common–and safe–way to do this is the claims professional sends the file to a peer review doctor (usually out of state) and he determines that there is no medically necessity to the treatment the authorized physician recommends or there is overutilization.  This peer review report is not exactly admissible since it is not an authorized doctor.
From there, the E/C denies treatment based on the peer review report.  Then, Claimant files a PFB for benefits.  And, then the E/C can seek an IME.  It all seems pointless, doesn’t it?
Isn’t it better if the E/C just tells the Claimant that it believes there is overutilization or questions the medical necessity of treatment?  Then obtains an IME to confirm or deny these suspicions.  This way the Claimant is not cut off and has at least a heads up that the E/C might cut him off. 
Recently, the First DCA gave a liberal interpretation of s. 440.13(5)(a) and allowed a party to obtain multiple IME’s whenever there is a new “dispute” between the parties.  I think the Court in McGraw might rule that a dispute does not have to equal a PFB.  The PFB is just the manifestation of the dispute.  And since only a Claimant can file a PFB, an E/C should be allowed to declare a dispute and seek an IME to confirm their position.
If and when the First DCA rules on this claim, I will post a follow up.