Wilbur Jenkins v. Hillsborough County Aviation Authority and Florida Municipal Insurance Trust, Florida League of Cities/Workers’ Compensation Claims Dept., OJCC# 17-006953, Ft. Myers District, JCC Weiss; Decision Date: May 12, 2021

A party’s IME doctor must provide a written report for his or her opinions to be considered by the judge at the final hearing.

The claimant suffered a compensable work injury on December 25, 2016. After treating with multiple physicians, he was involved in a subsequent, intervening motor vehicle accident in August 2019. Upon receipt of pain management records from September 24, 2019, the carrier issued a denial for all future medical treatment due to the subsequent, intervening motor vehicle accident.

The employer/carrier obtained an IME physician, who reviewed extensive medical records from 2013 to 2019. That doctor opined that no further medical treatment was related to the work accident and same was 90% due to the motor vehicle accident. During his deposition, however, he altered his opinion, changing it to 60% for degenerative conditions predating the industrial accident and 40% to the motor vehicle accident.

At the final hearing, the claimant sought to have his IME physician testify live. The employer/carrier objected, arguing the claimant had selected a different IME doctor. They further argued that the claimant had failed to show entitlement to an alternative IME doctor under the statute. Since the employer/carrier failed to provide any evidence that the claimant had actually seen IME doctor number one, the judge felt that the claimant was allowed to substitute an IME physician of his choice and that this doctor was not considered an alternative.

However, the judge sustained the employer/carrier’s alternative objection and agreed that allowing the claimant’s IME doctor to testify would result in trial by ambush, where the employer/carrier did not know the IME had occurred and had never received the report, and the claimant had listed the doctor to testify via deposition and not live at the final merit hearing. The claimant countered that IME doctor number two was not required to prepare a report and that there is no requirement that an expert witness prepare a report.

The judge sustained the objection by the employer/carrier and held:

Claimant disclosed IME doctor number two exactly 30 days before the final merit hearing, even though he was aware that he wanted an IME doctor five months prior to the final merit hearing when he disclosed IME doctor number one; claimant did not satisfy the 15-day requirement, nor was the claimant able to show that the IME occurred greater than 10 days prior to the final merit hearing.

The judge also rejected the claimant’s argument that his expert does not have to prepare a report. Rule 60 Q .6–114 states that depositions of witnesses may be taken and used in the same manner as provided in the Florida rules of civil procedure. Rule 1.360 (b)(1) provides that the party who obtains an examination of a person “shall deliver to the other party a copy of a detailed written report of the examiner setting out the examiner’s findings,” and “if an examiner fails or refuses to make a report, the tribunal may exclude the examiner’s testimony if offered at trial.”

However, the judge disagreed with the employer/carrier when they argued that there had been a break in the chain of causation with the subsequent, intervening motor vehicle accident. Because their IME physician testified that the motor vehicle accident was only 40% responsible for the claimant’s ongoing need for treatment, the employer/carrier failed to demonstrate a break in the chain of causation. Per their own IME physician, the motor vehicle accident was not the major contributing cause of the need for treatment. The employer/carrier also tried to argue that the claimant’s pre-existing condition was the major contributing cause, but the evidence failed to show that the employer/carrier had ever denied treatment because of a pre-existing condition.

The judge also held that the employer/carrier had waived their misrepresentation defense by stipulating to the payment of indemnity on the eve of trial.


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