Cases

Claim filed based on allegations of exposure to mold in the workplace.  Claimant's IME doctor testified over the objection of the employer/carrier that in his medical opinion, the exposure to mold in the workplace was the cause of the claimant's developed symptoms including sinus infection, cough, voice loss, bronchitis, and swelling of the legs.  Claimant's IME doctor who expressed this opinion was a general practitioner with no specialized licensing in mold exposure or any related field and had never claimed to be an expert on mold related injuries or diseases. As a part of his research on the development of such symptoms, the claimant's IME doctor spoke with an infectious disease doctor in New York, who specialized in mold exposure and reviewed medical records of the clamant's co-workers who had similar symptoms.  The question in this case was whether the opinions of the claimant's IME physician were admissible. 

The decision to admit evidence is reviewed by the appellate court based on abuse of discretion.  The court determined that the JCC abused his discretion in admitting the expert testimony over the employer/carrier's objection because it was based on improper bolstering and lacked a sufficient factual foundation.  

The court determined that the claimant's IME opinion was improperly bolstered by the professional opinions and reports of others.  Improper bolstering occurs when an expert is used as a conduit for otherwise inadmissible evidence and the expert reaches an opinion by relying on the opinions and publications of other experts.  In this case, the IME doctor relied on several published articles.  In addition, the IME doctor's testimony was bolstered by his testimony that he relied upon the opinions of a New York based infectious doctor.  The doctor did not reach his opinion independently.  The doctor did not rely on his own independent opinion in making these determinations.  The doctor also relied on the inadmissible medical records of the claimant's co-workers to bolster his opinion.

In addition, the IME doctor's testimony lacked a sufficient factual foundation to establish occupational causation.  By statute, this medical opinion had to be based on clear and convincing evidence establishing that there was an exposure to the specific substance involved at harm causing levels.  The doctor was unable to determine which mold existed in the claimant's workplace and which mold caused the symptoms.

The JCC abused his discretion when he admitted the claimant's IME doctor's occupational causation opinion testimony into evidence.