On June 9, 2017, the First DCA handed down the case of Lewis v. Dollar Rent A Car, 42 Fla. L. Weekly D1331 (Fla. 1st DCA 2017), which quashed a JCC order granting an employer/carrier’s motion to compel a functional capacity evaluation (FCE).  The employer/carrier’s motion asserted that the FCE was ordered as medically necessary by the authorized treating physician.  When the claimant refused to attend, and the JCC granted the employer/carrier’s motion to compel, the claimant filed a Petition for Writ of Certiorari with the First DCA.

To obtain a writ of certiorari, a claimant must show that the order departs from the essential requirements of the law and results in material injury for the remainder of the case that cannot be corrected on post-judgment appeal.

The court held that, because the FCE would compel claimant to undergo physical endurance tests, the claimant sufficiently showed a material injury that could not be remedied on appeal and therefore satisfied the element of irreparable harm.

In determining whether the order departed from the essential requirements of the law, the court noted that claimant’s accident was governed by the 1987 statute, which, as is still the case, contains no provision for an FCE per se.  However, the court stated that a claimant may be compelled to submit to an FCE if the requisite authority is found somewhere in the statute.  The court analyzed the FCE as potentially qualifying as medical care, treatment or attendance under section 440.13(2)(a) that employer/carriers are required to provide.  It noted that although FCEs are typically performed for occupational purposes, the JCC found that the FCE would help the physicians in determining the future course of medical treatment.  Under that circumstance, an FCE may be considered a medical benefit that the JCC could order the employer/carrier to provide under the authority of paragraph 440.13(2)(a), but only if the claimant had filed a claim for the FCE. The court noted that a claimant always has the right to reject medical assistance (although consequences may include forfeiture of certain benefits). In Lewis, it was the employer/carrier who sought to compel the claimant to undergo an FCE that she did not want.

The court stated that the FCE is arguably equivalent to an IME provided for under section 440.25(6) (1987).  That section has been regarded as statutory authority for requiring a claimant to submit to an IME, but only when the claimant is claiming indemnity benefits and the JCC designated a “duly qualified physician” to conduct this FCE, neither of which was the case in Lewis. As the JCC did not explain where else within the 1988 version of Chapter 440 he found specific statutory authority to compel an FCE, the First DCA held that the JCC departed from the essential requirements of law.

THE TAKEAWAY:  If an FCE is not being requested, as is often the case, to determine final work restrictions but is rather being requested to “help the physicians in determining the future course of claimant’s treatment,” the court in Lewis seems to indicate that the JCC could compel the employer/carrier to provide the same if the claimant wanted it and filed a claim for it. However, where an employer/carrier seeks to compel a claimant to attend an FCE in order to determine final work restrictions, the Lewis case holds that JCCs lack the statutory authority to do so.

Boyd & Jenerette – Workers’ Compensation & Employment