Cases

Claim for permanent total compensation filed by claimant.  Employer/carrier obtained a vocational evaluation/reemployment assessment with a rehabilitation provider of its choosing.  A copy of the report completed by the employer/carrier's expert was provided to the claimant and the evaluator was listed as a witness on the pre-trial stipulation.  Less than 30 days prior to trial, the employer/carrier sought to delete its initial vocational provider from its witness list and replace it with a different vocational provider whose testimony was more favorable to the employer/carrier's position.  JCC allowed employer/carrier to exclude from evidence the report of the first evaluator to be substituted by the testimony of the second evaluator.

A JCC's decision to exclude evidence is reviewed for abuse of discretion.  A JCC's interpretation of the Evidence Code requires de novo review. 

Under the Florida Evidence Code, all relevant evidence is admissible except as provided by law.  Section 90.402, Florida Statutes (2007).  Court determined that the initial vocation provider's report was relevant and probative of many facts related to the claimant's entitlement to permanent total compensation.  There was no legal basis warranting the exclusion of such evidence.  Although the Legislature has expressly limited workers' compensation litigants to one independent medical examination, it has not created such a limit on vocational/rehabilitation providers.  In some instances, multiple reemployment/rehabilitation services must be provided by more than one individual.  The employer/carrier's argument that the initial provider's report should have been excluded on the basis of the work product privilege was also rejected by the court.  The employer/carrier did not invoke the work product privilege discovery exemption upon or after producing and disclosing the initial provider's report (thereby waiving the objection to such privilege).  In addition, the first evaluator's report did not constitute work product such that it was exempt from discovery.  Section 440.491(4)(b), Florida Statutes (2007) requires the initial vocational provider to furnish its initial reemployment assessment to the claimant.  Accordingly, this report cannot be characterized as work product.