42
Fla. L. Weekly D1331aTop of Form
Fla. L. Weekly D1331aTop of Form
Workers’
compensation — Judge of compensation claims departed from essential
requirements of law by granting employer/carrier’s motion to compel claimant to
attend functional capacity evaluation — Because FCE contemplated would compel
claimant to undergo physical endurance tests, claimant has shown material
injury that cannot be remedied on appeal — Nothing in applicable statute
authorized JCC to compel FCE
compensation — Judge of compensation claims departed from essential
requirements of law by granting employer/carrier’s motion to compel claimant to
attend functional capacity evaluation — Because FCE contemplated would compel
claimant to undergo physical endurance tests, claimant has shown material
injury that cannot be remedied on appeal — Nothing in applicable statute
authorized JCC to compel FCE
LAURA LEWIS, Petitioner, v. DOLLAR
RENT A CAR and ESIS WC CLAIMS, Respondents. 1st District. Case No. 1D16-2951.
Opinion filed June 9, 2017. Petition for Writ of Certiorari — Original
Jurisdiction. Counsel: Jane-Robin Wender of Wender Law, P.A., Boca Raton, for
Petitioner. Kimberly J. Fernandes of Kelly Kronenberg, P.A., Tallahassee, for
Respondents.
RENT A CAR and ESIS WC CLAIMS, Respondents. 1st District. Case No. 1D16-2951.
Opinion filed June 9, 2017. Petition for Writ of Certiorari — Original
Jurisdiction. Counsel: Jane-Robin Wender of Wender Law, P.A., Boca Raton, for
Petitioner. Kimberly J. Fernandes of Kelly Kronenberg, P.A., Tallahassee, for
Respondents.
(PER CURIAM.) In this workers’
compensation proceeding, Petitioner/Claimant requests certiorari review of an
order of the Judge of Compensation Claims (JCC) granting the Employer/Carrier’s
(E/C’s) motion to compel her to attend a functional capacity evaluation (FCE).
Because we conclude that the order departs from the essential requirements of
law and would cause harm that cannot be corrected on appeal, we grant the
petition and quash the order.
compensation proceeding, Petitioner/Claimant requests certiorari review of an
order of the Judge of Compensation Claims (JCC) granting the Employer/Carrier’s
(E/C’s) motion to compel her to attend a functional capacity evaluation (FCE).
Because we conclude that the order departs from the essential requirements of
law and would cause harm that cannot be corrected on appeal, we grant the
petition and quash the order.
Claimant was involved in a
compensable accident in 1989. She subsequently settled the indemnity portion of
her case in 1990, but she continues to receive authorized and causally related
medical care.1 On March 22, 2016, the E/C filed a
“Motion to Compel Attendance at Functional Capacity Evaluation.” The motion
asserted that an FCE had been prescribed by authorized treating physicians and
that Claimant failed to attend the FCE appointment. The motion also asserted
that the FCE was ordered as “medically necessary” by the treating physicians.
No supporting documents were attached. Claimant subsequently filed a Petition
for Benefits (PFB) on May 19, 2016, seeking prescription medication — also
recommended by one of her treating doctors. An evidentiary hearing on the
motion to compel was held on June 17, 2016.2 On the morning of the evidentiary
hearing on the motion, the E/C e-filed medical records purportedly in support
of its motion. The e-filed documents included medical records and a
prescription with a handwritten note from the authorized treating physician
indicating the FCE was “medically necessary.” At the hearing on the motion,
Claimant’s counsel objected to the introduction of the medical records and
documents as untimely and unauthenticated. The JCC overruled the objection on
the basis that reports of authorized treating physicians may come into evidence
pursuant to “F.S. 440.13” without authentication, and because there was no
evidence that Claimant did not have access to the records before the hearing.
compensable accident in 1989. She subsequently settled the indemnity portion of
her case in 1990, but she continues to receive authorized and causally related
medical care.1 On March 22, 2016, the E/C filed a
“Motion to Compel Attendance at Functional Capacity Evaluation.” The motion
asserted that an FCE had been prescribed by authorized treating physicians and
that Claimant failed to attend the FCE appointment. The motion also asserted
that the FCE was ordered as “medically necessary” by the treating physicians.
No supporting documents were attached. Claimant subsequently filed a Petition
for Benefits (PFB) on May 19, 2016, seeking prescription medication — also
recommended by one of her treating doctors. An evidentiary hearing on the
motion to compel was held on June 17, 2016.2 On the morning of the evidentiary
hearing on the motion, the E/C e-filed medical records purportedly in support
of its motion. The e-filed documents included medical records and a
prescription with a handwritten note from the authorized treating physician
indicating the FCE was “medically necessary.” At the hearing on the motion,
Claimant’s counsel objected to the introduction of the medical records and
documents as untimely and unauthenticated. The JCC overruled the objection on
the basis that reports of authorized treating physicians may come into evidence
pursuant to “F.S. 440.13” without authentication, and because there was no
evidence that Claimant did not have access to the records before the hearing.
To obtain a writ of certiorari,
Claimant must show that the order here is “(1) a departure from the essential
requirements of the law, (2) resulting in material injury for the remainder of
the case (3) that cannot be corrected on postjudgment appeal.” Reeves v.
Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) (citations
omitted). The last two elements are generally considered together as
“irreparable harm.”
Claimant must show that the order here is “(1) a departure from the essential
requirements of the law, (2) resulting in material injury for the remainder of
the case (3) that cannot be corrected on postjudgment appeal.” Reeves v.
Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) (citations
omitted). The last two elements are generally considered together as
“irreparable harm.”
We have previously held that “[i]n
the context of compelled physical or psychiatric examinations, the required
element of irreparable harm may be found based on the notion that once the
invasive harm of the examination occurs, it cannot be undone on appeal.” Taylor
v. Columbia/HCA Doctors Hosp. of Sarasota, 746 So. 2d 1244, 1245 (Fla. 1st
DCA 1999). Although Chapter 440 contains no reference to FCEs and no evidence
was presented to explain the exact nature of the evaluation, the parties appear
to agree that the FCE here will require Claimant to perform a series of
endurance tests designed to determine the limits of her physical capabilities.
The E/C argues that an FCE is different from other compelled physical
examinations because it will not involve “invasive” medical procedures such as
blood tests or x-rays. We reject this argument. For the purpose of determining
irreparable harm, we have never interpreted the invasiveness of the
examinations so narrowly, and our decisions have not turned on proof of the
type of medical procedures that may be included as a part of the compelled
exam. In the case of a compelled psychiatric examination, for example, the
invasion of privacy alone may constitute irreparable harm. See, e.g., Zabik
v. Palm Beach Cty. Sch. Dist., 911 So. 2d 858, 859 (Fla. 1st DCA 2005)
(“Certiorari review lies if the JCC orders a psychiatric IME [independent
medical examination] without statutory authority.”). Because the FCE
contemplated here will compel Claimant to undergo physical endurance tests, we
find that Claimant has shown a material injury that cannot be remedied on
appeal, which satisfies the element of irreparable harm. Additionally, because
the parties are in an adversarial relationship the evaluator is essentially an
expert witness for the party requesting the examination, here an FCE. See
Chavez v. J & L Drywall, 858 So. 2d 1266, 1268 (Fla. 1st DCA 2003).
the context of compelled physical or psychiatric examinations, the required
element of irreparable harm may be found based on the notion that once the
invasive harm of the examination occurs, it cannot be undone on appeal.” Taylor
v. Columbia/HCA Doctors Hosp. of Sarasota, 746 So. 2d 1244, 1245 (Fla. 1st
DCA 1999). Although Chapter 440 contains no reference to FCEs and no evidence
was presented to explain the exact nature of the evaluation, the parties appear
to agree that the FCE here will require Claimant to perform a series of
endurance tests designed to determine the limits of her physical capabilities.
The E/C argues that an FCE is different from other compelled physical
examinations because it will not involve “invasive” medical procedures such as
blood tests or x-rays. We reject this argument. For the purpose of determining
irreparable harm, we have never interpreted the invasiveness of the
examinations so narrowly, and our decisions have not turned on proof of the
type of medical procedures that may be included as a part of the compelled
exam. In the case of a compelled psychiatric examination, for example, the
invasion of privacy alone may constitute irreparable harm. See, e.g., Zabik
v. Palm Beach Cty. Sch. Dist., 911 So. 2d 858, 859 (Fla. 1st DCA 2005)
(“Certiorari review lies if the JCC orders a psychiatric IME [independent
medical examination] without statutory authority.”). Because the FCE
contemplated here will compel Claimant to undergo physical endurance tests, we
find that Claimant has shown a material injury that cannot be remedied on
appeal, which satisfies the element of irreparable harm. Additionally, because
the parties are in an adversarial relationship the evaluator is essentially an
expert witness for the party requesting the examination, here an FCE. See
Chavez v. J & L Drywall, 858 So. 2d 1266, 1268 (Fla. 1st DCA 2003).
“A departure from the essential
requirements of law,” the remaining element for certiorari review, is defined
as “a violation of a clearly established principle of law resulting in a
miscarriage of justice.” Combs v. State, 436 So. 2d 93, 96 (Fla. 1983).
It is well established that a JCC has only the powers expressly provided by
statute. See, e.g., McArthur v. Mental Health Care, Inc., 35 So.
3d 105, 107 (Fla. 1st DCA 2010) (holding JCC has only those powers expressly
provided by statute and, conversely, has no jurisdiction or authority beyond
that specifically conferred by statute). This Court has previously held that a
departure from the essential requirements of law occurs if the JCC orders an
examination by an independent medical examiner or expert medical advisor (EMA)
without the requisite statutory authority. See, e.g., Stahl v.
Hialeah Hosp., 127 So. 3d 1283, 1284 (Fla. 1st DCA 2013) (reversing order
compelling IME where there was no dispute as required by statute); Alvarado
v. Wackenhut Corp., 951 So. 2d 937, 938 (Fla. 1st DCA 2007) (finding JCC
departed from essential requirements of law by ordering appointment of
neuropsychologist as EMA). Similarly, the FCE here cannot be compelled without
proper statutory authority.
requirements of law,” the remaining element for certiorari review, is defined
as “a violation of a clearly established principle of law resulting in a
miscarriage of justice.” Combs v. State, 436 So. 2d 93, 96 (Fla. 1983).
It is well established that a JCC has only the powers expressly provided by
statute. See, e.g., McArthur v. Mental Health Care, Inc., 35 So.
3d 105, 107 (Fla. 1st DCA 2010) (holding JCC has only those powers expressly
provided by statute and, conversely, has no jurisdiction or authority beyond
that specifically conferred by statute). This Court has previously held that a
departure from the essential requirements of law occurs if the JCC orders an
examination by an independent medical examiner or expert medical advisor (EMA)
without the requisite statutory authority. See, e.g., Stahl v.
Hialeah Hosp., 127 So. 3d 1283, 1284 (Fla. 1st DCA 2013) (reversing order
compelling IME where there was no dispute as required by statute); Alvarado
v. Wackenhut Corp., 951 So. 2d 937, 938 (Fla. 1st DCA 2007) (finding JCC
departed from essential requirements of law by ordering appointment of
neuropsychologist as EMA). Similarly, the FCE here cannot be compelled without
proper statutory authority.
In workers’ compensation law,
substantive rights are established by the date of the accident. See, e.g.,
Butler v. Bay Ctr./Chubb Ins. Co., 947 So. 2d 570, 572 (Fla. 1st DCA
2006); Styles v. Broward Cty. Sch. Bd., 831 So. 2d 212, 213 (Fla. 1st
DCA 2002). Here, the parties’ substantive rights are determined by the law in
effect in 1988. The 1988 statute contains no provision for an FCE per se.
substantive rights are established by the date of the accident. See, e.g.,
Butler v. Bay Ctr./Chubb Ins. Co., 947 So. 2d 570, 572 (Fla. 1st DCA
2006); Styles v. Broward Cty. Sch. Bd., 831 So. 2d 212, 213 (Fla. 1st
DCA 2002). Here, the parties’ substantive rights are determined by the law in
effect in 1988. The 1988 statute contains no provision for an FCE per se.
Although 1988 law does not expressly
provide for FCEs, Claimant may be compelled to submit to an FCE if the
requisite authority is found in the statute. Section 440.13(2)(a), Florida
Statutes (Supp. 1988), requires the E/C to provide Claimant with medically
necessary remedial treatment, care, and attendance. Although FCEs are typically
performed for occupational purposes, the JCC here found that the FCE in this
case “will help the physicians in determining the future course of claimant’s
treatment.” Under that circumstance, an FCE may be considered a medical benefit
that the JCC could order the E/C to provide under the authority of paragraph
440.13(2)(a), if Claimant had filed a claim for the FCE. But here, it is
the E/C who seeks to compel Claimant to undergo an FCE that she does not want.
provide for FCEs, Claimant may be compelled to submit to an FCE if the
requisite authority is found in the statute. Section 440.13(2)(a), Florida
Statutes (Supp. 1988), requires the E/C to provide Claimant with medically
necessary remedial treatment, care, and attendance. Although FCEs are typically
performed for occupational purposes, the JCC here found that the FCE in this
case “will help the physicians in determining the future course of claimant’s
treatment.” Under that circumstance, an FCE may be considered a medical benefit
that the JCC could order the E/C to provide under the authority of paragraph
440.13(2)(a), if Claimant had filed a claim for the FCE. But here, it is
the E/C who seeks to compel Claimant to undergo an FCE that she does not want.
In Wojick v. Department of
Children & Families, 75 So. 3d 362 (Fla. 1st DCA 2011), we held that
the JCC lacked jurisdiction to compel a claimant’s attendance at an functional
medical evaluation (FME)3 on three grounds: there was no
pending petition for benefits, there was no statutory right to an FME per se
within Chapter 440, Florida Statutes, and there was insufficient proof that the
FME was “medically necessary” as that phrase is used in section 440.13(2)(a),
Florida Statutes. For clarification, the rule of law in Wojick is not
based on whether a prescription exists from an authorized provider for an FME,
or whether an FME is medically necessary. The holding in Wojick is based
on the absence of corresponding statutory authority for the JCC to require a
claimant to submit to medical treatment or testing outside of those instances
in which the statute specifically confers such authority.
Children & Families, 75 So. 3d 362 (Fla. 1st DCA 2011), we held that
the JCC lacked jurisdiction to compel a claimant’s attendance at an functional
medical evaluation (FME)3 on three grounds: there was no
pending petition for benefits, there was no statutory right to an FME per se
within Chapter 440, Florida Statutes, and there was insufficient proof that the
FME was “medically necessary” as that phrase is used in section 440.13(2)(a),
Florida Statutes. For clarification, the rule of law in Wojick is not
based on whether a prescription exists from an authorized provider for an FME,
or whether an FME is medically necessary. The holding in Wojick is based
on the absence of corresponding statutory authority for the JCC to require a
claimant to submit to medical treatment or testing outside of those instances
in which the statute specifically confers such authority.
Here, there is a pending PFB.
However, the existence of a pending PFB does not alleviate the absence of
statutory authority to compel a claimant’s attendance at an FCE. While a JCC
may have authority to compel a claimant’s attendance at an IME or before an
EMA, there is no such statutory authority regarding an FCE. Additionally, the
claimant always has the right to reject medical assistance (although
consequences may include forfeiture of certain benefits). Id.; see
also Jackson v. Columbia Pictures, 153 So. 3d 349, 350 (Fla. 1st DCA
2014) (“There has never been any part of the workers’ compensation law that
permits an E/C to force a claimant to submit to treatment, nor does any
provision of law brought to our attention permit this court to bodily force an
injured employee to undergo unwanted medical care.”).
However, the existence of a pending PFB does not alleviate the absence of
statutory authority to compel a claimant’s attendance at an FCE. While a JCC
may have authority to compel a claimant’s attendance at an IME or before an
EMA, there is no such statutory authority regarding an FCE. Additionally, the
claimant always has the right to reject medical assistance (although
consequences may include forfeiture of certain benefits). Id.; see
also Jackson v. Columbia Pictures, 153 So. 3d 349, 350 (Fla. 1st DCA
2014) (“There has never been any part of the workers’ compensation law that
permits an E/C to force a claimant to submit to treatment, nor does any
provision of law brought to our attention permit this court to bodily force an
injured employee to undergo unwanted medical care.”).
In West Coast Elevator Co. v.
Wood, 780 So. 2d 321 (Fla. 1st DCA 2001), we reversed an order granting the
claimant’s request for an FCE because there was “no competent, substantial
evidence supporting the medical necessity of an FCE.” To clarify, West Coast
Elevator does not hold that a JCC can compel an FCE if it is “medically
necessary.” West Coast Elevator did not involve a motion to compel a
claimant’s attendance at an FCE. The claimant in West Coast Elevator
requested an FCE as part of a claim relating to a prior hearing on his
entitlement to permanent total disability benefits. The FCE was ultimately
denied for lack of proof of “medical necessity.” West Coast Elevator
relates only to those circumstances where a claimant requests an FCE
(therefore, logically acquiescing to attendance) as a benefit due under section
440.13(2)(a), Florida Statutes, and can demonstrate “medical necessity.” This
ruling does not apply to an E/C’s attempt to force a claimant’s attendance at
an FCE, or to whether the JCC has the jurisdictional power to compel such
attendance, or to whether such an FCE is “medically necessary.”
Wood, 780 So. 2d 321 (Fla. 1st DCA 2001), we reversed an order granting the
claimant’s request for an FCE because there was “no competent, substantial
evidence supporting the medical necessity of an FCE.” To clarify, West Coast
Elevator does not hold that a JCC can compel an FCE if it is “medically
necessary.” West Coast Elevator did not involve a motion to compel a
claimant’s attendance at an FCE. The claimant in West Coast Elevator
requested an FCE as part of a claim relating to a prior hearing on his
entitlement to permanent total disability benefits. The FCE was ultimately
denied for lack of proof of “medical necessity.” West Coast Elevator
relates only to those circumstances where a claimant requests an FCE
(therefore, logically acquiescing to attendance) as a benefit due under section
440.13(2)(a), Florida Statutes, and can demonstrate “medical necessity.” This
ruling does not apply to an E/C’s attempt to force a claimant’s attendance at
an FCE, or to whether the JCC has the jurisdictional power to compel such
attendance, or to whether such an FCE is “medically necessary.”
Arguably, the FCE is equivalent to
an IME in this case. Section 440.25(6), Florida Statutes (1987), provides that
“[a]n injured employee claiming or entitled to compensation shall submit to
such physical examination by a duly qualified physician designated or approved
by the deputy commissioner[4] or approved by the deputy
commissioner as the deputy commissioner may require.” This subsection has been
regarded as statutory authority for requiring a claimant to submit to an IME. See
Atlanta Nat’l Real Estate Tr. v. Rain, 392 So. 2d 1339, 1341 (Fla. 1st
DCA 1980). But the facts here do not meet the statutory requirements because
(1) Claimant is neither claiming, nor is she entitled to claim, compensation
(indemnity) benefits; and (2) the JCC did not designate or approve “a duly
qualified physician” to conduct this FCE. The 1988 law further provides that
“[i]n making an investigation or inquiry or conducting a hearing, the deputy
commissioner . . . may make such investigation or inquiry, or conduct such
hearing, in such a manner as to best ascertain the rights of the parties.” §
440.29(1), Fla. Stat. (1987). This provision also has been construed as
authority for ordering an IME, but cannot apply in this case because the FCE
was not ordered as incidental to any pending dispute or issue. See Jackson,
153 So. 3d at 350 (holding compelled IME must be limited to attendant care
issue pending before JCC). Thus, even assuming the FCE could be considered an
IME, the requisite statutory authority does not exist.
an IME in this case. Section 440.25(6), Florida Statutes (1987), provides that
“[a]n injured employee claiming or entitled to compensation shall submit to
such physical examination by a duly qualified physician designated or approved
by the deputy commissioner[4] or approved by the deputy
commissioner as the deputy commissioner may require.” This subsection has been
regarded as statutory authority for requiring a claimant to submit to an IME. See
Atlanta Nat’l Real Estate Tr. v. Rain, 392 So. 2d 1339, 1341 (Fla. 1st
DCA 1980). But the facts here do not meet the statutory requirements because
(1) Claimant is neither claiming, nor is she entitled to claim, compensation
(indemnity) benefits; and (2) the JCC did not designate or approve “a duly
qualified physician” to conduct this FCE. The 1988 law further provides that
“[i]n making an investigation or inquiry or conducting a hearing, the deputy
commissioner . . . may make such investigation or inquiry, or conduct such
hearing, in such a manner as to best ascertain the rights of the parties.” §
440.29(1), Fla. Stat. (1987). This provision also has been construed as
authority for ordering an IME, but cannot apply in this case because the FCE
was not ordered as incidental to any pending dispute or issue. See Jackson,
153 So. 3d at 350 (holding compelled IME must be limited to attendant care
issue pending before JCC). Thus, even assuming the FCE could be considered an
IME, the requisite statutory authority does not exist.
Here, the JCC ultimately relied on
the analysis in Wojick, where this Court addressed a similar problem
with statutory authority for a compelled FME. Without deciding whether an FME
is the same as an IME, the Wojick court nevertheless quashed the order
because the JCC lacked jurisdiction given that there was (1) no pending PFB;
(2) no statutory authority for an FME per se within Chapter 440; and (3)
insufficient proof of medical necessity. In the order on review here, the JCC
applied the language in Wojick and reasoned that the requirements were
met here by the undisputed medical evidence of medical necessity and the
pending PFB. Significantly, the JCC did not explain where within the 1988
version of Chapter 440 he found specific statutory authority to compel an FCE.
As a result, the JCC departed from the essential requirements of law because
nothing in the Wojick opinion — or any other legal authority —
suggests that the jurisdictional problem there would be cured if only one or
more, but not all three, of the deficiencies existed.5
the analysis in Wojick, where this Court addressed a similar problem
with statutory authority for a compelled FME. Without deciding whether an FME
is the same as an IME, the Wojick court nevertheless quashed the order
because the JCC lacked jurisdiction given that there was (1) no pending PFB;
(2) no statutory authority for an FME per se within Chapter 440; and (3)
insufficient proof of medical necessity. In the order on review here, the JCC
applied the language in Wojick and reasoned that the requirements were
met here by the undisputed medical evidence of medical necessity and the
pending PFB. Significantly, the JCC did not explain where within the 1988
version of Chapter 440 he found specific statutory authority to compel an FCE.
As a result, the JCC departed from the essential requirements of law because
nothing in the Wojick opinion — or any other legal authority —
suggests that the jurisdictional problem there would be cured if only one or
more, but not all three, of the deficiencies existed.5
Because the JCC did not have the
requisite statutory authority here, the order compelling Claimant to undergo an
FCE is a departure from the essential requirements of law, which, as we have
explained, will cause Claimant irreparable harm. Accordingly, we GRANT the
petition and QUASH the order granting the E/C’s motion to compel. (OSTERHAUS,
BILBREY, and WINOKUR, JJ., CONCUR.)
requisite statutory authority here, the order compelling Claimant to undergo an
FCE is a departure from the essential requirements of law, which, as we have
explained, will cause Claimant irreparable harm. Accordingly, we GRANT the
petition and QUASH the order granting the E/C’s motion to compel. (OSTERHAUS,
BILBREY, and WINOKUR, JJ., CONCUR.)
__________________
1Accordingly, she is no longer
eligible for wage-loss benefits under section 440.15, Florida Statutes.
eligible for wage-loss benefits under section 440.15, Florida Statutes.
2Due to pending PFB, no issue existed
as to jurisdiction of the JCC to consider the motion.
as to jurisdiction of the JCC to consider the motion.
3Like a functional capacity
evaluation, Chapter 440 does not expressly provide for a functional medical
evaluation either. See Interior Custom Concepts v. Slovak, 969
So. 2d 1095, 1096 (Fla. 1st DCA 2007). For purposes of the issue presented
here, the analysis relating to authorization for an FME is the same as for an
FCE.
evaluation, Chapter 440 does not expressly provide for a functional medical
evaluation either. See Interior Custom Concepts v. Slovak, 969
So. 2d 1095, 1096 (Fla. 1st DCA 2007). For purposes of the issue presented
here, the analysis relating to authorization for an FME is the same as for an
FCE.
4JCCs were formerly called “deputy
commissioners.”
commissioners.”
5Due to reversal on other grounds, we
need not address Claimant’s challenges to authenticity and timeliness of
medical records and documents introduced by the E/C regarding “medical
necessity” of the FCE.
need not address Claimant’s challenges to authenticity and timeliness of
medical records and documents introduced by the E/C regarding “medical
necessity” of the FCE.
* * *rm