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Lewis v. Dollar Rent A Car

Florida Court of Appeals, First District

June 9, 2017

LAURA LEWIS, Petitioner,
v.
DOLLAR RENT A CAR and ESIS WC CLAIMS, Respondents.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         Petition for Writ of Certiorari - Original Jurisdiction.

          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.

         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.

         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."

         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).

         "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.

         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.

         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.

         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.

         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 ...


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