Tomaskovich v. Lapointe, 1D04-3318.

• Decision Date: 27 May 2005
• Docket Number: No. 1D04-3318.,1D04-3318.
• Citation: 904 So.2d 538
• Parties: Anthony TOMASKOVICH, et al., Appellant, v. Andre LAPOINTE, Appellee.
• Court: Florida District Court of Appeals

904 So.2d 538

Anthony TOMASKOVICH, et al., Appellant, v. Andre LAPOINTE, Appellee.

No. 1D04-3318.

District Court of Appeal of Florida, First District.

May 27, 2005.

Rehearing Denied June 30, 2005.

H. George Kagan, Esquire, and Theodore J. Berman, Esquire; Miller, Kagan, Rodriguez & Silver, P.A., West Palm Beach, for Appellant.

Richard A. Lovesky, Esquire, Bradenton, and Bill McCabe, Esquire, Longwood, for Appellee.

HAWKES, J.

The Employer and Carrier (E/C) appeal the order of the Judge of Compensation Claims (JCC), which found an Independent Medical Examination (IME) qualified as the "initial provision of benefits," triggering the 120-day pay and investigate provisions of section 440.20(4), Florida Statutes (2001). We reverse.

FACTUAL BACKGROUND

In October 2001, Claimant was doing masonry work when the scaffolding he was on broke. He fell six feet landing on his buttocks, with concrete blocks falling on top of him. Claimant testified he injured his wrist, fractured his jaw, a block landed on top of his head, his back hit the block pile, and he dislocated his hip. The E/C accepted the accident and the injuries of which Claimant complained, as compensable. In August 2002, Claimant filed a petition for benefits (PFB) alleging a compensable back injury resulted from the accident. By default the E/C denied each allegation.

In January 2003, an orthopedic surgeon, Dr. Wolff, examined Claimant and performed what the doctor reported was an IME. Dr. Wolff ordered x-rays, and subsequently diagnosed degenerative disc disease of the lumbar spine. Dr. Wolff's report noted Claimant's emergency room records for the date of the accident did not include back complaints, examination or x-rays. Because of the lack of initial complaints, and the significant time differential (approximately five months) between the accident and onset of symptoms, the doctor was unable to opine that Claimant's back problem resulted from the work-related accident. The January visit was the only time Dr. Wolff saw Claimant.

In March 2003, the parties entered into a stipulation which, in relevant part, stated "an orthopedic surgeon was timely authorized for treatment of the claimant's back pursuant to the [PFB] dated August 12, 2002. Further treatment will be authorized if medically necessary and related to the compensable accident." The stipulation further indicated all PFBs at issue were withdrawn without prejudice.

THE JCC'S HOLDING

Based on the foregoing, the JCC found there was no competent, substantial evidence to find Claimant's back injury resulted from the work place accident. We agree.

Despite this finding, the JCC concluded the IME must be treatment, and if treatment, then a benefit. If the IME is converted to a benefit, then the E/C had 120 days from January 10, 2003, or until May 10, 2003, to deny compensability. The JCC also concluded the E/C failed to timely deny compensability and was therefore estopped from defending the claim, pursuant to section 440.20(4), Florida Statutes (2001). We disagree with these conclusions.

The structure of the JCC's logic was: (1) Dr. Wolff saw Claimant for the IME in January 2003; (2) The March 2003 stipulation stated Dr. Wolff was authorized to treat Claimant's back; (3) Together, any office visit (regardless of what occurs at the visit) to an authorized physician must equate to treatment; (4) Any treatment is a benefit provided to the Claimant; (5) Any provision of a benefit triggers the section 440.20(4), pay and investigate provisions.

The JCC's logic fails for two reasons: (1) It ignores that on January 10, 2003, Dr. Wolff did not provide treatment to the Claimant, but instead performed an IME; and (2) The JCC ignored the full import of the parties' stipulation.

AN IME IS NOT TREATMENT

Clearly, when the E/C fail to controvert a claim within 120 days after the initial provision of benefits, they are estopped from denying compensability. See § 440.20(4), Fla. Stat. (2001); Willis v. Publix Super Markets, Inc., 871 So.2d 941 (Fla. 1st DCA 2004). However, the benefit that triggers the 120-day period must actually be provided, not merely authorized. See Osceola County Sch. Bd. v. Arace, 884 So.2d 1003 (Fla. 1st DCA 2004).

Here, the record unequivocally indicates Dr. Wolff performed an IME. Dr. Wolff's report is labeled, "Independent Medical Evaluation," and states that "[t]he examination was conducted consistent with the guidelines of the American Board of Independent Medical Examiners. These guidelines were explained to the claimant prior to the examination." The test in determining whether a benefit was provided when a physician is authorized, is what the physician did, not what the parties suspected he did or believed he did. Thus, even if Dr. Wolff was authorized,¹ to treat, he must actually provide treatment before Claimant would receive a benefit that would trigger the section 440.20(4), pay and investigate provisions.

Both Florida Statutes and our case law interpreting those statutes clearly show an IME is not treatment. An IME is defined in section 440.13(5)(a), Florida Statutes (2001). That section provides that an IME is used only when there is a dispute, and provides that either the E/C or the claimant may use an IME to assist in the resolution of the dispute.² Although an IME...