Mills v. Fairfax County Public Schools Fairfax County School Board, 031521 VAWC, VA00000190136

• Case Date: March 15, 2021
• Court: Virginia

JAMES MILLS v. FAIRFAX COUNTY PUBLIC SCHOOLS FAIRFAX COUNTY SCHOOL BOARD, Insurance Carrier HELMSMAN MANAGEMENT SERVICES, Claim Administrator Jurisdiction Claim No. VA00000190136 Virginia Workers Compensation Virginia In The Workers’ Compensation Commission March 15, 2021           Date of Injury: November 25, 2009          Claim Administrator File No. 80D036504           Andrew S. Kasmer, Esquire For the Claimant.           Charles F. Trowbridge, Esquire For the Defendant.           REVIEW on the record by Commissioner Marshall, Commissioner Newman, and Commissioner Rapaport at Richmond, Virginia.          ORDER           RAPAPORT Commissioner          The defendant requests review of the Deputy Commissioner’s October 26, 2020 Amended Opinion awarding permanent total disability benefits.^[1] We VACATE and REMAND.^[2]          I. Material Proceedings          The procedural history of this case is controlling.          The claimant sustained a compensable injury by accident to his back on November 25, 2009. The defendant has paid medical benefits and wage loss benefits. On December 6, 2019, the claimant filed a claim seeking permanent total disability benefits. He based his claim upon a November 19, 2019 Independent Medical Evaluation (“IME”) by Dr. M. M. Malek. The defendant defended that the claimant was not permanently and totally disabled as a result of his occupational injury.          On August 17, 2020, the Deputy Commissioner denied the defendant’s request for an IME that had previously been granted. The defendant timely requested interlocutory review and assigned error to the ruling that the claimant was excused from attending the IME. The defendant also objected to the Deputy Commissioner closing the record on August 24, 2020 and determining that the claimant’s appointments with his treating physician were “defense medical evaluations.” (Def.’s Rev. Req. 2, Aug. 31, 2020.) The Commission denied interlocutory review on September 11, 2020.^[3] In that decision, the Commission discussed the pertinent history:

The defendant sought leave to obtain its own IME. The Deputy Commissioner granted the defendant’s request on January 7, 2020 and directed the claimant to attend an examination once it was scheduled.

On July 30, 2020, the defendant sent a letter to the claimant informing him that he had been scheduled for an IME with Dr. Louis E. Levitt on August 24, 2020. The claimant objected to attending the examination, and on August 13, 2020 he filed a Motion for a Protective Order. He stated he had been required to attend two examinations in 2020 with Dr. [Paymaun] Lotfi, his treating physician, at the request of the defendant. The claimant characterized these appointments as “defense medical exam[s]”, and argued that being required to attend a third examination during the year was excessive.

The defendant filed a response to the claimant’s Motion on August 17, 2020. It noted the Deputy Commissioner previously ordered the claimant to submit to an IME, and argued that the claimant’s appointments with

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