Cases

Claim made for hypertension benefits.  The JCC determined benefits were payable after having appointed an Expert Medical Advisor based on conflicting medical reports/opinions concerning MMI dates and permanent impairment ratings. Employer/Carrier appealed based on the fact that there were no conflicting medical opinions warranting the appointment of an EMA and there was no competent and substantial evidence to support the judge's acceptance of the EMA's opinion.

Once an EMA is appointed, his/her opinion is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC.  Clear and convincing evidence is evidence "of a quality and character so as to produce in the mind of the JCC a firm belief or conviction without hesitancy as to the truth of the allegation sought to be established." This heightened standard of proof does not change the appellate court's standard of review, however, the appellate court's function is not to conduct a de novo proceeding  or re-weigh the evidence by determining independently whether the evidence as a whole satisfies the clear and convincing standard but to determine whether the record contains competent and substantial evidence to meet the clear and convincing evidence standard.  The appellate court determined that there was competent and substantial evidence to support the JCC's determination to accept the findings made as to the award of benefits.

The Employer/Carrier had objected to the EMA's opinion based on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579(1993).  The objection based on Daubert was first raised in an amendment to the parties' pre-trial stipulation. The appellant did not re-affirm the objection at trial or on re-hearing.  The objecting party made no attempt to depose the EMA to ascertain whether he had a sufficient basis for his opinions and did not file a Motion in Limine, Motion to Strike, or any other motion to limit or exclude any medical expert's opinion and provided no specifics on the basics of the Daubert ojection. Court determined that appellants had failed to preserve their Daubert argument for appeal. To be preserved on appeal, the issue must be presented in the lower court and the specific legal argument or ground to be argued on appeal must be a part of the presentation.

Court reminded appellants that the standard of review in workers' compensation cases is when a competent and substantial evidence supports the decision below, not whether it is possible to recite contradictory record evidence which supported the arguments rejected below. Dissenting opinion discussing methodology in determining medical findings related to hypertension findings and the percentage of impairment for determining benefits payable.