Protecting the Injured Worker; Should the Insurance Company’s IME be videotaped?
In Florida workers’ compensation cases, a dispute will often arise as to whether the injury being treated is related to the work accident, or whether the recommended treatment is medically necessary. If an injured worker files a petition asking for any type of benefit, the insurance company has the right, and is likely to exercise that right, to send an injured worker to a non-treating doctor for the purpose of addressing causation questions or evaluating the authorized doctor’s recommended treatment. Putting aside whether the doctor chosen by the carrier is truly “independent” as the name suggests, and putting aside the fact that the insurance company was the one that chose the authorized treating doctor in the first place, these visits by the injured worker to the carrier’s independent medical examiner (IME) are important events in the life of a claim with lasting results. Therefore, the use of video recording of such exams has become commonplace by attorneys during work comp litigation.
With more and more of these videos out there, it’s not surprising that defense attorneys are filing Motions to Compel the Production of the videos before the depositions of their IME doctors. Should such videos be discoverable, or are they protected by the work product privilege? The First District Court of Appeals recently provided an answer to this question in the case of Medina v. American Airlines, No. 1D16-3777, 12/21/2016, published.
Carlos Medina filed a workers’ compensation claim against the employer, American Airlines, for injuries he claimed to have sustained while handling baggage. During litigation, the E/C sent Medina for an IME. The attorney for the injured worker, understanding the value of being able to see what did or did not happen at the exam, made arrangements for the IME to be videotaped. Everyone was given proper notice and the exam proceeded as planned.
The E/C did not make similar arrangements to create its own recording, but later demanded that Mr. Medina turn over a copy of his video. Mr. Medina, through his attorney, refused to produce the footage. The E/C filed a Motion to Compel the production of the video which was granted by the judge of compensation claims. The JCC’s order indicates the video was going to be used by Medina’s attorney to cross-examine the IME doctor during the doctor’s deposition, and that the deposition would later be presented as evidence at the final hearing on Medina’s claim. Therefore, the JCC found video was not protected by work product privilege and should be turned over to the E/C. Rather than producing the video, the attorney for Medina petitioned the 1st DCA for an order to quash the JCC’s order.
In reviewing and deciding Medina’s petition, the 1st DCA applied the longstanding rule that materials prepared in anticipation for trial are normally protected from compulsory disclosure by the “work product privilege.” Since the video in question was made in the preparation of the hearing on Medina’s claim for benefits, it was definitely protected by the privilege. The remaining question was whether Medina’s attorney had caused the privilege to “evaporate” by asking the IME doctor questions during his deposition based on the content of the video she had seen.
The Court held that since Medina’s attorney’s questions did not indisputably rely on the video or necessarily require its use at trial. Therefore, unless the actual video is used for impeachment at the deposition or it is intended to be used at trial, it remains protected by the privilege and does not have to be produced.
Kimberly J. Syfrett (Kim) is a managing partner of Syfrett, Dykes & Furr in Panama City. She is an FWA Board Member and Officer. Kim limits her practice of law to helping Florida’s injured workers and veterans.