 REGISTERED NURSE
Exam scheduled with
someone other than a doctor
Wagar Law represented a registered nurse who was receiving monthly disability income benefits from his insurance company. Our client's benefits were based on a his cervical and lumbar disk herniations, which rendered him totally disabled. His insurance provider then scheduled him for a functional capacity evaluation also referred to as an FCE. This exam was to be conducted by a therapist, not a licensed doctor. Our law firm carefully reviewed our client's insurance policy and found that even though he was required to undergo a medical examination, he had the right to see a physician of his choice.
In response, the disability lawyers at the Wagar Law firm filed a lawsuit in Federal court, seeking declaratory judgment, injunction and recovery of attorneys’ fees and costs. Our motion asked the court to decide if insurance carrier’s insistence for the FCE by a non-doctor examiner was a valid requirement under the terms of the insured's policy. The insurance company’s request to have the lawsuit dismissed was denied. We agreed to dismiss the case if the insurance provider agreed (in writing) they did not have the right to pursue a FCE under the terms of the policy They also had to agree to never schedule another FCE. His insurance company would not agree to the proposed settlement terms and as a result, this case is still pending.
ORTHOPEDIC SURGEON
Rights under Florida Law – Videotaping IME
This case study concerns an orthopedic surgeon who developed carpal tunnel syndrome or CTS and was no longer able to work at his own occupation. Approximately 90% of his job duties required the use of his hands. It's easy to see how devastating a diagnosis of carpel tunnel syndrome could be, especially for someone of his profession. It rendered him unable to perform the material duties of his (own) occupation. The orthopedic surgeon filed an insurance claim for disability income benefits and at first, his insurance provider accepted his disability claim and paid on the policy. Not long after, he was scheduled for an independent medical exam or IME. The insurance company instructed the insured/claimant to attend the evaluation alone. They also indicated they could stop his disability payments should he refuse to participate in the IME, alone. The orthopedic surgeon then contacted the Wagar Law firm.
We carefully examined the terms and conditions of our client's disability insurance policy. While his plan required him to submit to the IME, it also stated he could select the physician to conduct the exam. There was no requirement he attend this examination alone. Furthermore, the insurance company did not have the right to threaten or terminate benefits based on these claims. We informed the insurance company the claimant would cooperate and submit to the examination provided a professional videographer could videotape the visit. We also requested and received a copy of the IME doctor’s qualifications and proof he had medical malpractice insurance.
The insurance company initially refused our request to have the IME videotaped. In response, we cited Florida case law, addressing the right of workers’ compensation and personal injury claimants to have a third party present regardless of who they may be. We then informed the orthopedic surgeon's insurance provider we intended to file a declaratory action. If our action was allowed to proceed, the court would have determine the validity of the terms of the insured's policy and whether the provider had the right to refuse IME videotaping. The insurance company also ran the risk they could be found liable for court costs and legal fees. The orthopedic surgeon's insurance provider backed down and permitted the IME to be recorded thus avoiding a lawsuit.
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