Williams v. Bci Industries
| Decision Date | 01 December 2006 |
| Docket Number | No. 1D06-0469.,1D06-0469. |
| Citation | 943 So.2d 911 |
| Parties | Nicholas WILLIAMS, Appellant, v. BCI INDUSTRIES and Alternative Service Concepts, Appellees. |
| Court | Florida District Court of Appeals |
Thomas A. Vaughn of Vaughn & Maxwell, P.A., Orlando, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.
Todd J. Sanders, Orlando, and Wanda Reas of Znosko & Reas, P.A., Maitland, for Appellees.
Claimant, Nicholas Williams, appeals a final order of the judge of compensation claims (JCC) denying his requests for medical and temporary partial disability (TPD) benefits. Claimant argues the JCC erred by (1) denying his motion to continue the merits hearing for the purpose of allowing claimant to present evidence rebutting the testimony of Dr. Ronald Oppenheim, who conducted on claimant a post-hearing independent medical examination (IME), and (2) ruling that claimant had voluntarily limited his income after being released to work with restrictions. We affirm issue one, but reverse issue two, and remand the case for further proceedings.
After the merits hearing was concluded, the JCC determined the medical evidence presented was insufficient to enable him to reach a decision whether Williams was suffering from a neurological condition, and, in order to resolve the question, he appointed a neurologist, Dr. Ronald Oppenheim, to perform an IME, as authorized by section 440.29(1), Florida Statutes (2005), allowing JCCs to conduct investigations.1 Claimant later filed a motion seeking a continuance of the hearing for the JCC to consider the records and/or testimony of two orthopedic physicians pertaining to arthroscopic surgery claimant had undergone after the performance of the neurological IME, and the report of an expert medical advisor (EMA) appointed following the hearing to resolve the conflict between the parties' orthopedic physicians. Because Dr. Oppenheim had deferred to claimant's orthopedic physicians with regard to orthopedic matters, claimant contends the JCC erred by denying the motion.
Our standard of review of an order denying a motion to reopen the evidence for the purpose of receiving new evidence is that of abuse of discretion. See Gayton v. Mills Septic Tank, 695 So.2d 397 (Fla. 1st DCA 1997). Claimant fails to show the JCC abused his discretion by denying the motion. It is undisputed that a JCC may order an IME on his or her own motion. See, e.g., Scotty's, Inc. v. Sarandrea, 645 So.2d 121 (Fla. 1st DCA 1994); Berry Corp. v. Smith, 576 So.2d 1366 (Fla. 1st DCA 1991); Sanlando Reprographics v. Vidimos, 545 So.2d 397 (Fla. 1st DCA 1989); Atlanta Nat'l Real Estate Trust v. Rain, 392 So.2d 1339 (Fla. 1st DCA 1980); Lu-Mar Enters., Inc. v. Mazur, 8 F.C.R. 248 (IRC Order 2-2456 Mar. 12, 1974). None of these cases hold, however, that the JCC is then required to permit the parties to submit additional evidence to support or contradict the IME.
Although Williams cites several cases stating that a JCC who reopens a proceeding to allow additional evidence must allow rebuttal evidence, none of these cases involved a post-hearing JCC ordered IME. Instead, in each, one of the parties was allowed or directed to submit additional evidence. See, e.g., Exxon Co., U.S.A. v. Alexis, 370 So.2d 1128 (Fla.1978); Diamond R. Fertilizer v. Davis, 567 So.2d 451 (Fla. 1st DCA 1990); Tri-County Cmty. Council v. Gillis, 384 So.2d 48 (Fla. 1st DCA 1980). In contrast, an IME ordered by the JCC is party-neutral in that it is not submitted at the behest of either party.
Moreover, claimant sought to submit orthopedic evidence in rebuttal, whereas the JCC had already considered such evidence and determined the orthopedic issue at the previous hearing.2 The JCC appointed Dr. Oppenheim to assist him in deciding only whether claimant was afflicted with a neurological condition.
The claimant also contends there was no competent, substantial evidence supporting the JCC's conclusion that claimant was not entitled to TPD benefits between August 1, 2003, and October 9, 2003 (the termination of the statutory 104-week period), on the ground that he had voluntarily limited his income. In so deciding, the judge otherwise found that claimant's treating physician, Dr....
To continue reading
Request your trial