Many E/C’s assume that once you retain an independent medical examiner, their opinion will automatically favor them.  You are “buying” an opinion, right?  Wrong.  Just because you pay for the services of an expert does not mean that expert will snap to and be a puppet for your defense.

IME doctors can still sink you and disagree with the legal position you are taking.  Therefore, it is always a risk to retain an IME because there is always a chance it can go bad for you. 

And if it does go bad, what are your options?  Many of us in the profession thought you were sunk.  After all, section 440.13(5)(b) mandates that your are bound by your IME selection.  Now, it seems that a party still has some life left even when their own IME shoots them in the foot.

More after the jump. . .

In Keeton v. Kentucky Fried Chicken, Claimant suffered a compensable accident.  Her authorized doctor diagnosed her with carpal tunnel syndrome (CTS) but opined it was not related to the compensable accident.  For some reason, the E/C obtained an IME (presumably to support the authorized doctor’s opinion?).   The E/C’s IME actually went against them and opined that the CTS is work related.

To dig themselves out of the self-dug hole they put themselves in, the E/C then moved for an Expert Medical Advisor (EMA).  After all, per s. 440.13(9)(c),  they had two authorized doctors who had a difference of opinion on compensability of the CTS.   An EMA is mandated. 

Keep in mind, the Claimant chose not to retain an IME (for obvious reasons).   The only two differing opinions are the authorized doctor that sided with the E/C and the E/C’s own IME who went against them.

The Judge granted the E/C’s motion for an EMA and the EMA sided with the E/C.  The Judge in turn ruled for the E/C.  Claimant appealed on the grounds that s. 440.13(5)(b) requires that each party is “bound” by his selection of an IME. 

The First DCA affirmed, reasoning that the “bound” language s. 440.13(5)(b) refers to the number of IME’s a party can have.  Plus, the EMA statute contains no exceptions that a party can seek an EMA to defeat their own IME opinion.

This was good news for the E/C in Keeton, but for future handling be careful in a situation like this.  The E/C did not need an IME.   It already had the authorized treater on its side.  Why risk an unfavorable IME opinion?  It simply was not worth it.

The First DCA has found that a party can have an IME per dispute.  In other words, an E/C can get an IME per Petition.  But, just because you have a loaded gun does not mean you have to shoot.  Assess your case before automatically paying for an IME just to re-enforce your defense.  If you have the facts or the medical opinions or the law on your side, do you really need to spend $1500 to $2500 on an IME that could be unfavorable.

Don’t assume that all IME’s will side with you.  And, don’t assume you should get an IME for every claim just because you can.

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