|Jones Act - Defenses|
|Thursday, 21 May 2009 15:23|
Case Name: Miguel Calderon v Reederei Claus-Peter Offen GMBH & Co.
Date of Judgment: 27th April 2009
Court: U.S.D.C. - S.D. Florida
Judge: Magistrate Judge Seltzer
Citation: 2009 WL 1125027 (S.D.Fla.)
Plaintiff, Miguel Calderon ("Longshoreman") brought this claim under the Longshore and Harbor Workers Compensation Act ("LHWCA"). He sought to recover for physical injuries allegedly sustained while working aboard the defendant's, Reederei Claus-Peter Offen GMBH & Co. ("employer") vessel.
Employer moved to compel longshoreman to submit to an independent medical examination. This exam needed to include x-rays, magnetic resonance imaging ("MRI") and questions about the longshoreman's prior medical history. Finally, the employer sought to videotape the examination.
Longshoreman consented to a medical examination, but on his own terms. He asserted that the requested exam was too vague, and the questions and videotape were unnecessary.
Issue: Whether the Court will order the longshoreman to undergo an independent medical examination, given according to the employer's requests.
The Court held that the longshoreman would have to undergo an independent medical examination. The longshoreman's argument about the exam being too vague failed. The identity of the examining physician and his specialty (orthopaedic surgery), the date and time of the examination, location of the doctor's office and areas which the physician would inquire were all sufficiently detailed.
The longshoreman must allow the physician to ask him questions related to the accident. The burden is on the longshoreman to demonstrate the physician will improperly conduct the examination or ask questions not pertinent to the examination. Here, he failed to show any probable improper conduct. Therefore, the Court will not limit the physician's questions.
The videotaping of the examination will not be permitted. The employer needed to show good cause to prove the need for a videotape. Their argument that the videotape will avoid discrepancies is insufficient. The Court held that neither party may videotape the examination.
The Court will often compel a party to submit to an independent medical examination when the other party has given sufficient details to satisfy the court. These often include: who the physician is, the date and time of the examination, the location of the physician's office, what questions will be asked, and what body parts will be observed and tested. There are more, but a Court will look to these particular factors first.
The party seeking to not answer questions during the examination has the burden of proof. They must prove the physician will be an advocate for the other party, ask questions not pertinent to the examination, or otherwise turn the examination into a second deposition.
|Last Updated on Tuesday, 20 October 2009 04:12|