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.

The question in this case is whether there was an excuse for the claimant to notify the employer/carrier that an accident had occurred in the workplace pursuant to Section 440.185(1), Florida Statutes.  In this case, the claimant alleged a May 22, 2019 injury but did not notify the employer of such an accident until well after the 30-day time period for reporting such as required in Section 440.185, Florida Statutes. In accordance with this statutory provision, failure to timely advise the employer of an accident within 30 days of the event precludes entitlement to workers' compensation benefits. 

Exceptions to this rule include those situations where the employer had actual knowledge of the injury;  the claimant could not discern that the work caused his injury without a medical opinion; or "exceptional circumstances, outside the scope of these circumstances justifying such failure." A diagnosis of the condition is not necessary to start the clock under the statute unless the claimant either was unaware at the time of the accident caused him some bodily harm or he was not aware that the incident itself caused the debilitating symptoms. 

Medical records reflected that following the May 22 alleged incident, the claimant made numerous visits to seek medical care but never mentioned an alleged neck and back injury that the claimant was claiming related to the incident of May 22.  The court referenced the Supreme Court decision of Escarra v. Winn Dixie Stores, 131 So. 2d 483 which made reference to the fact that the starting of the time to give notice does not begin until the claimant as a  reasonable man should recognize the nature of the seriousness and probable compensable character of his injury or disease.  However, the court pointed out that the Supreme Court's opinion was applying a different version of this time-bar statute.  The current statute runs the 30 days either from when the employee suffers the injury or from its initial manifestation of the injury which was not readily apparent at the time of the accident.  One exception to this requirement is that the cause of the injury could not be identified without a medical opinion.  In this case, there was never any doubt in the claimant's mind that the cause of the pain underlying his injuries related to the May 22 incident.  Accordingly, a medical opinion was not needed to clear that up.  The 30-day requirement notice could be delayed if there is a finding of "exceptional circumstances." Court found that there were no exceptional circumstances in this case warranting a delayed notice of accident to the employer/carrier.

Conflicting IMEs required the appointment of an EMA.  The EMA determined that the May 22 incident was the result of a diagnosed herniated disc.  However, the EMA relied on evidence presented by the claimant as to facts not in evidence. Court determined the EMA's opinion in this instance was improper and accordingly, belief in the Expert Medical Advisor's presumed correctness of the facts presented a clear and convincing amount of evidence to the contrary as determined by the JCC.

This case involved conflicting medical testimony as to the cause of the claimant's injuries following an incident on the job.  The question for review was whether the JCC had jurisdiction to determine if the testimony of one of the doctors that created the medical dispute warranting the appointment of an Expert Medical Advisor as to whether the one doctor's testimony was subject to a Daubert objection. JCC determined that he did not have jurisdiction to make that determination. Court determined, however, that once a party raised a Daubert objection to the testimony of one of the physicians, the JCC had the responsibility to perform the necessary analysis, make relevant supporting findings of fact and issue a ruling as to whether medical testimony should be stricken.  The court determined that it was not their responsibility but rather the responsibility of the JCC to make that determination on admissibility of evidence. The court determined that such refusal to consider the Daubert objection was not harmless. Concurring and dissenting opinions.

Court determined that Section 440.13(4)(c), Florida Statutes, allowing for ex parte communication/conferences between the employer/carrier and the claimant's treating physician is constitutional.  There is no violation of the privacy clause of the Florida constitution.

In this case, there was an issue as to the claimant's entitlement to temporary benefits. The treating physician had diagnosed a retroactive maximum medical improvement date.  Point in time that as a matter of law, temporary benefits would not be payable post-MMI.  A question on appeal is whether the treating doctor could retroactively diagnose maximum medical improvement.  

The question of whether a claimant has reached maximum medical improvement is a medical question that should be answered by medical experts.  However, a JCC's reliance on a physician's opinion must be supported by the substance of that doctor's medical testimony and not merely by the doctor's conclusion.  In providing a retroactive maximum medical improvement date, The doctor does not have to examine the claimant on that date of MMI.  The claimant also argued on appeal that the MMI date as determined by the treating physician was precluded because the claimant continued to receive medical care with an expectation of some degree of further recovery.  However, in this case, the doctor testified that all care after the initial treatment and MMI determination was palliative in nature.

The doctrine of estoppel may be a viable bar to retroactive assignment of MMI or work restrictions under certain facts.  However, in this case, the court determined that the claimant did not satisfy the required elements of estoppel.  See Gauthier v. Florida International University, 38 So. 3d 221 (Fla. 1st DCA 2010).

Court determined that the 120-day rule for denying the compensability of the claim applied in this case and any denial of compensability after the 120-day period was ineffective.  The JCC basically had determined that there were material facts relevant to the issue of compensability that the employer/carrier could not have discovered through reasonable investigation within the 120-day period and therefore, the failure to deny compensability within this period of time would not preclude a subsequent denial of compensability.  Court found that the JCC could not have reached such a conclusion in the absence of a finding as to when the investigation should have begun. When the 120-day period begins to run is a factual determination.  The statute does not require that certainty exists before the investigation period begins to run. 

In this case, the claimant had a preexisting arthritic back condition. The surgical notes of the treating physician on a particular date should have reasonably been brought to the carrier's attention the fact that the claimant's personal condition preexisted the industrya accident thereby alerting to the necessity of beginning an investigation.  Yet, the employer/carrier failed to take any action within 120 days from such notice.  The court on remand mandated that the JCC determine when the employer/carrier had material facts relevant to the issue of causation that calls into question their obligations to the claimant to provide treatment, thus triggering the duty to immediately and in good faith commence an investigation of the employee's entitlement to benefits.

Certain medical evidence from a doctor that treated the claimant prior to the compensable accident was excluded from testimony concerning the compensability of this case.  The JCC's exclusion of evidence is reviewed for an abuse of discretion.  

Although medical opinion testimony admissible before the JCC can only be given by Expert Medical Advisors, Independent Medical Examiners, and authorized treating physicians, other medical testimony can be received as a factual report of the information contained in a doctor's office records regarding the claimant. That testimony can include a claimant's complaints, the doctor's diagnosis, and the prescribed treatment. In this case, a court determined that the JCC erred in denying the admissibility of evidence from physician as to the claimant's preexisting medical condition.  Dissenting opinion.

JCC admitted into evidence the testimony of the claimant's IME in establishing the compensability of a mold exposure case.  Court determined that JCC erred in admitting testimony from expert.  A JCC's decision to admit evidence is reviewed for abuse of discretion.

The court reaffirmed previous findings that the Florida Evidence Code applies to workers' compensation proceedings.  Court determined in this case that the claimant did not supply a sufficient evidentiary basis for concluding that claimant was exposed to mold in her workplace or that the mold exposure at work was the major contributing cause of the claimant's symptoms. 

The claimant's IME doctor improperly bolstered his opinions by the professional opinions and reports of others.  An expert's reference to other expert's opinions and publications as to occupational causation is relying upon incompetent evidence.  The IME of the claimant also bolstered his testimony with opinions of another doctor who he had talked to about such exposures.  Such reliance upon other doctors' opinions did not constitute a situation where the IME doctor relied upon his own independent opinion.  The court also determined that the IME doctor also relied on inadmissible medical records of the claimant's co-workers to bolster his opinion.  Such reliance is improper.

The court also determined that the IME testimony lacked a sufficient factual foundation to establish occupational causation.  There must be testimony as to the specific substance involved in the exposure at levels causing injury which the expert in this instance did not testify to.  

In conclusion, the JCC abused his discretion when he admitted into evidence the testimony of the claimant's IME doctor supporting occupational causation for the claimant's medical problems.

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.

Claimant's authorized doctor recommended a cervical fusion which was wrongfully denied by the employer/carrier.  Claimant therefore went to another doctor and had a different less intrusive surgical procedure.  The employer/carrier asserted that the less intrusive surgical procedure was not the major contributing cause of the claimant's on-the-job accident.  

An injured worker may obtain wrongfully denied medical treatment at the expense of the employer/carrier under the self-help provisions of Section 440.13(2)(c), Florida Statutes. Where this self-help provision applies, the JCC has the statutory authority to authorize a doctor for care provided during the period of wrongful denial.

The claimant's burden under the "self-help" provision of Section 440.13(2)(c) is to show that the surgery that he actually received (a different surgery than what the authorized doctor recommended) was compensable, reasonable, and medically necessary.  In this case, no medical testimony concerning the cause and medical necessity of the less invasive surgery received from the unauthorized doctor, the JCC only cited evidence of medical necessity based on the medical records from the self-help doctor.  This was error under 440.13(5)(e). 

Only opinions from authorized providers, Independent Medical Examiners, and Expert Medical Advisors are admissible in workers' compensation proceedings. The medical opinions of an unauthorized self-help doctor are not admissible unless and until it is established (by other admissible evidence and medical opinions) that the care rendered by the self-help doctor was compensable and medically necessary.  The self-help doctor's opinion on compensability and medical necessity cannot "bootstrap" itself into evidence. In this case, the judge appeared to bootstrap records of the self-help provider because no other admissible evidence existed that the claimant's surgery was compensable and medically necessary.

Court affirmed JCC's award of lawn care because competent and substantial evidence supported the JCC's finding that such care would improve the claimant's compensable conditions of depression and anxiety.  Court also affirmed the JCC's award of attendant care, a podiatrist, an AFO brace and evaluation of the need for specialized shoes for the claimant. The employer/carrier forfeited the right to contest the medical necessity of these items by failing to timely respond to a written request by an authorized health care provider pursuant to Section 440.13(3)(d), Florida Statutes. Court, however, reversed the award for home renovations. 

In workers' compensation, the employer/carrier may be responsible for providing an accessible living environment under the statutory requirement for the furnishing of medically necessary apparatus.  The question in this case is whether there was competent and substantial evidence to support the medical necessity of the specific home renovations that were awarded by the JCC.

In attempting to prove the compensability of the home renovations, claimant's attorney employed the services of a registered nurse with rehabilitation experience and training to prepare a home assessment which required such renovations.  Court determined, however, the nurse was not able to testify as to medical necessity since she was not a physician.  The nurse's testimony was not sufficient to create medical necessity even though the authorized pain management physician deferred to the nurse's opinions concerning medical necessity of any home renovations. This is even assuming that the authorized pain management physician in this case properly deferred to the nurse.  Concurring opinion.

Court determined that JCC erred in excluding the opinion of an Expert Medical Advisor who commented on issues that were not certified to him for determination.  In reversing the JCC's order excluding such evidence, court determined that the EMA's opinion should have been admitted into evidence but without attributing to it the presumption of correctness prescribed in Subsection 440.13(9), Florida Statutes.  See Lowe's Home Ctrs Inc., v. Beekman, 187 So.2d 318(Fla. 1st DCA 2016).

JCC relied on the EMA's opinion in denying temporary total disability benefits to the claimant. This denial of benefits was despite evidence that the claimant's authorized treating physician had taken him off of work entirely and never informed him that he could return to work.  The appellate court determined that this was error to deny benefits holding that an injured worker can rely on an authorized treating provider's instruction to refrain from work "even assuming retrospective testimony that claimant could have worked during this period." Charles v. Suwannee Swifty, 622 So.2d 114, 115(Fla. 1st DCA 1993).

Court determined that the standard adopted for considering expert testimony as stated in Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993) applies in workers' compensation cases notwithstanding the fact that the Supreme Court has not adopted the standard as being a part of the Florida Evidence Code.  Although the Florida Supreme Court has the authority to adopt procedural rules for judicial proceedings under Article V, Section 2(a) (of the Florida Constitution), the court does not have the authority to establish procedural rules for executive branch quasi judicial proceedings such as those under Chapter 440, Florida Statutes.  Even if the Supreme Court declines to adopt the Daubert test in Section 90.702 for judicial proceedings because the test is procedural in nature, that decision will have no impact on the applicability of Daubert in workers' compensation proceedings.

Claimant developed a sudden pain in his neck when opening heavy lids on equipment lockers at work.  Employer/carrier did not accept any injury as compensable theorizing that the claimant's neck pain was preexisting and not work related.  Claimant saw two doctors that were not authorized by the employer/carrier and both testified that the claimant's symptoms were caused by his work related incident.  JCC excluded the testimony of the claimant's two chosen doctors since they were not authorized, were not IME doctors and were not EMA doctors.  Claimant sought to introduce the medical opinions based on authorization of medical care utilizing the self-help provisions of Section 440.13 since the employer/carrier did not provide medical treatment. 

In order to make authorized medical treatment pursuant to the self-help provisions of Section 440.13, Florida Statutes, there must be a showing that the care rendered by the self-help doctor was compensable and medically necessary. The self-help doctor's opinion that the care was compensable and medically necessary cannot bootstrap itself into evidence.  In other words, compensability of the treatment must come from a source other than the testimony of the unauthorized doctors. 

JCC entered an order compelling the claimant's psychologist to testify by deposition concerning the psychologist's opinions related to fitness-for-duty evaluations.  Claimant's attorney objected to the testimony of the psychologist alleging that information in the possession of the psychologist was protected by the psychotherapist-patient privilege in Section 90.503, Florida Statutes.

On appeal, court determined that order of JCC requiring psychologist to testify in the deposition was not in violation of this privilege.  The psychologist's testimony concerning fitness-for-duty evaluations for the claimant is not privileged. The subpoena issued by the employer/carrier requested any and all medical records relating to the claimant from the date the claimant was first seen by the doctor.  This subpoena was inconsistent with the JCC's order requiring the production of information only as related to the claimant's fitness-for-duty. However, the court concluded that they were confident, upon request, that the JCC would conduct the required in-camera review of the doctor's records before the doctor's deposition to ensure that no irrelevant or privileged information unrelated to the claimant's fitness-for-duty evaluation would be produced.

Court determined that JCC erred in improperly considering medical testimony of a physician who was not a treating physician, independent medical examiner, or expert medical advisor.  See Section 440.13(5)(e), Florida Statutes.  However, such errror was harmless. There was no reasonable possibility that this error contributed to the result of the case or the decision of the judge or there was a reasonable possibility that a different result would be reached were the case remanded for reconsideration. The test for harmless error requires the beneficiary of the error to establish there was no reasonable possibility that the error contributed to the verdict.

The JCC does not have jurisdiction over reimbursement disputes between medical providers and carrier.  The JCC has jurisdiction to resolve issues of medical necessity as between the claimant and the carrier.

Claimant was hospitalized on two occasions.  The JCC ruled that the first hospitalization was not compensable but the second hospitalization was compensable.  On appeal, court determined that the JCC's decision finding not compensable the first hospitalization was error.  The facts that establish the second hospitalization as emergency services as concluded by the JCC were basically the same facts surrounding the first hospitalization. 

The Evidence Code applies to workers' compensation proceedings.  Effective July 1, 2013, the Legislature amended Section 90.702, Florida Statutes, and adopted the admissibility test first described in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.579(1993) commonly referred to as the Daubert test. This test must be applied to ascertain the admissibility of a treating neurosurgeon's expert opinion on apportionment. Court remanded case with directions that JCC apply the Daubert test as codified in the Florida Evidence Code to determine whether the doctor's expert opinion was admissible.  See Giaimo v. Florida Autosport, Inc., 154 So. 3d 385(Fla. 1st DCA 2014) and Booker v. Sumter County Sheriff's Office, 40 FLW D1291(Fla. 1st DCA 2015).

Court found that the JCC did not err in finding claimant's objection to the admissibility of evidence in accordance with the case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 as being untimely.  In addition, the JCC did not abuse her discretion in admitting expert testimony upon a finding that the experts were well acquainted with the claimant's medical history and medical condition, that they relied on published medical studies generally accepted within the medical community, and that they applied the results of these studies to the facts of the case in reaching their opinions on causation.

An employer may offer evidence of a congenital condition to overcome the occupational presumption of compensability of a heart or hypertension condition created by Section 112.18, Florida Statutes.  In this case, the JCC's finding that the claimant's condition was not congenital was a finding that may have contributed to the ultimate conclusion in this case.  The employer argued that the JCC ignored or overlooked parts of the medical opinion testimony when he concluded in an order that the claimant did not have a congenital condition.  The court determined that apparently the JCC had overlooked or failed to address the testimony of one doctor who indicated that the claimant's preexisting condition created the medical problems for which the claim had been filed. Where it is demonstrated that the JCC overlooked or ignored evidence which if considered by the JCC could change the outcome of the case, the proper remedy is reversal and remand for consideration of this evidence.  Case reversed and remanded to the JCC for consideration of the medical evidence in its entirety.

An employer/carrier may seek to apportion a claimant's medical and indemnity benefits if a preexisting condition is aggravated by or merges with the effects of a workplace injury.  Apportionment is an affirmative defense and the employer/carrier has the burden of proof to establish entitlement to the reduction of benefits. Appellate court determined that competent and substantial evidence supported the JCC's finding the accident in this instance aggravated a preexisting cervical condition.  The question in this case was whether the testimony of the treating doctor was based on medically accepted evidence under Section 440.15(5)(b), which requires the employer/carrier to establish with medical evidence the degree of impairment to be apportioned.  Court determined that the JCC relied upon medical testimony that was "pure opinion" and thereby inadmissible under Section 90.702, Florida Statutes, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579.

In excluding the apportionment testimony of the treating doctor, the appellate court found that in rendering such an opinion, there was no testimony as to principles or methods utilized in rendering his opinion but rather such was based on the pure opinion testimony of the doctor.

Claimant's treating doctor recommended the claimant be evaluated by a Spanish speaking neuropsychologist.  The employer/carrier provided a neuropsychologist but authorized a translator to accompany the claimant to this appointment rather than scheduling a Spanish speaking neuropsychologist.  The basis of a referral to a Spanish speaking psychiatrist in neuropsychologist was the possibility that the referral doctor would get the wrong information without adequately communicating with the claimant.  The JCC found that the referral based solely on the possibility that one could get the wrong information did not equate to medical necessity for such a referral and accordingly denied the specific request for the Spanish speaking physician or psychologist.

A determination of reasonable medical certainty depends on the substance of the evidence rather than the use of "reasonable medical certainty" terminology or on any other so called magic words by a medical witness.  This is a factual issue that remains within the adjudicatory function of the JCC based on the substance of the evidence presented.  Court on appeal determined that there was sufficient evidence of record sustaining the JCC's determination of a lack of medical evidence concerning the necessity for treatment.  It may have been preferable for a Spanish speaking physician to treat the claimant but Section 440.13(2)(a), Florida Statutes, requires that recommended treatment be medically necessary if the employer is to pay for it.  Court determined that the JCC did not err in rejecting the testimony of the authorized doctor that a Spanish speaking physician was necessary to provide care for the claimant.

Unrebutted medical testimony can be rejected by the JCC so long as there is a reasonable evidentiary basis for doing so.  A reasonable basis for the JCC to reject medical testimony can include conflicting medical evidence; evidence that impeaches the expert's testimony or calls such testimony into question, such as a failure of the claimant to give the medical expert an accurate or complete medical history; or conflicting lay testimony or evidence that disputes the claim. 

Concurring opinion concluding that the provision of a qualified psychiatrist, coupled with an interpreter, met prevailing standards of care related to medical necessity of treatment as provided for in Section 440.13(k), Florida Statutes (2014).  Dissenting opinion opined that this case of first impression incorrectly denied a Spanish speaking claimant a medically necessary evaluation by a Spanish speaking psychiatrist, a treatment which the claimant's authorized doctor recommended that the claimant receive.

Court determined that JCC erred in rejecting an EMA opinion.  JCC had appointed an EMA to resolve a conflict in medical opinions regarding the claimant's work restrictions from an industrial injury.  The EMA had rendered a report indicating that the claimant was capable of performing light duty work with certain specified functional restrictions.  The EMA testified by deposition that he would defer to the current pain management specialist as to the types and nature of pain management but stated in the deposition that his opinions as to the claimant's ability to work were in no way changed as a result of deferring to the pain management doctor.  JCC concluded that the EMA's opinions on physical work restrictions were equivacal and therefore inconclusive.  The JCC's rejection of the EMA opinions on the claimant's ability to return to work deemed by court to be error.  EMA opinions are presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC.  In this case, there was no clear and convincing evidence as to the reasons why the JCC rejected the EMA opinion.

JCC determined that the claimant was permanently and totally disabled based upon a doctor's opinion that the claimant was unable to work in at least sedentary employment within a 50-mile radius of the employee's residence, due to physical limitations, i.e., accepting the doctor's testimony that was contrary to the opinions of the EMA.  If these opinions were not accepted, the JCC ruled that the claimant was still PT based on the case of Blake v. Merck & Company, 43 So. 3d 882 and the fact that the permanent restrictions combined with vocational factors created a PT status.  In this regard, the judge accepted the claimant's vocational expert's opinions over the employer/carrier's vocational expert as to the claimant's ability to return to work.  However, the claimant's vocational expert assumed that the EMA had adopted the opinion of the pain management doctor that the claimant was precluded from sedentary work in combination with vocational factors and physical restrictions.  The claimant's vocational expert's opinion did not constitute competent and substantial evidence supporting a finding of PTD even for this alternate way of establishing PT liability. 

Court determined also that the JCC erred in rejecting the employer/carrier's vocational expert's opinion based upon personal observations of the claimant's physical limitations related to pain as a vocational factor.  Pursuant to Section 440.09(1), Florida Statutes (1994), pain is compensable only with objective relevant medical findings and any disability resulting from a compensable injury also must be established to a reasonable degree of medical certainty based on objective relevant medical findings.  Therefore, under the Florida law, physical limitation related to pain is a medical issue to be addressed only by a medical expert.

Court determined that it was an abuse of discretion by the JCC in failing to allow for a continuance of a hearing to take the deposition of a doctor or allow for post-hearing depositions to be taken in accordance with Rule 60Q-6.121(5).  The treating physician's deposition had been scheduled but at a wrong address where the doctor was located.  The deposition could not be rescheduled before the final hearing although the employer/carrier's attorney had offered to take the deposition by telephone.  Such denial constituted reversal error since the right of a litigant to call witnesses is an important due process right.

Claimant had argued that it was harmless error not to allow for the deposition to be taken.  The test for harmless error in workers' compensation cases is whether "but for error, a different result may have been reached." The proper inquiry centers upon whether the error may yield a different result than that which was determined by the JCC.

The final determination made by the court was that it was an abuse of discretion for the JCC to deny the employer/carrier' right to take the deposition of the claimant's authorized doctor.

To the extent a JCC's order turns on a resolution of the facts, the standard of review is competent and substantial evidence.  To the extent it involves an interpretation of the law, the standard is de novo. 

Once compensability of an injury is established, a carrier can no longer contest that the accident is the major contributing cause of the injury.  To avoid responsibility for treatment thereafter, the employer/carrier must demonstrate a break in the causation chain between the accident and the injury for which treatment is sought.  In this instance, the JCC rejected the assertion that the claimant suffered a subsequent injury that could have been the major contributing cause of the claimant's injuries along with all medical opinions founded upon this proposition.  Because of the fact that the employer/carrier produced no affirmative evidence of another competing cause of the claimant's injuries following the compensable accident, the claimant satisfied his burden of persuasion in establishing the compensability of the medical condition for which treatment was sought.

In determining the definition of emergency treatment as that term is used in Section 440.13(1)(f), Florida Statutes, the court referenced Section 395.002(9)(a), Florida Statutes.  An emergency medical condition is a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:  (1) serious jeopardy to the patient's health (2) serious impairment to bodily functions (3) serious dysfunction of any bodily organ or part.  In proving whether emergency care services have been provided, and determining compensability under Chapter 440, the following questions must be answered in the affirmative:  (1) whether the service provider is a licensed physician (or other appropriate personnel acting under the supervision of a physician); (2) whether an evaluation, screening or examination was conducted by that physician (or other authorized personnel); and (3) whether such care was undertaken by the physician with the intent of determining if an emergency medical condition exists.  See Section 395.002(10), Florida Statutes (2005).  If each of these questions are answered in the affirmative, such services are deemed to be emergency.  The actual compensability of the emergency care without specific authorization from the carrier the care must be medically necessary and caused by the workplace injury.

In this case, the court determined that the emergency treatment being provided was in fact emergency care compensable under the workers' compensation statute.  Because it was compensable as emergency care, the medical provider was deemed to be "authorized" as a matter of law.  Routine medical care must be authorized by the carrier and only through such authorization can the physician become eligible for payment (except for the self help provisions of Section 440.13(2)(c), Florida Statutes, in which the employer/carrier had wrongfully denied treatment).  As an authorized doctor providing medical treatment, the doctor's opinions were admissible as an authorized doctor.

In determining whether treatment was emergency care, the patient/claimant need not actually suffer a loss of bodily function or serious function to a body part to meet the emergency definition; rather, the question is whether in the absence of immediate medical attention such effects might reasonably be expected to occur.

Court also reviewed the JCC's finding that the emergency surgery was not compensable since the emergency provider failed to give the employer/carrier timely notice of emergency treatment in accordance with Sectioin 440.13(3)(b), F.S.  Court noted however that Section 440.13(3)(b), Florida Statutes, does not set forth any penalty to the claimant for an emergency health care provider's failure to provide timely notice of emergency treatment to the employer/carrier.  To the extent that this statutory notice requirement might affect the amount of money that the doctor was entitled to receive, as opposed to his eligibility for treatment or compensability of the treatment, the JCC had no jurisdiction over any billing disputes between the doctor and the employer/carrier.  Concurring in part decision.

In regards to a fraud defense, there is no specific time period in which a fraud defense must be asserted.   A party is not required to anticipate false testimony from the opposing party and is therefore not required to discover evidence which would refute false testimony.  The proper inquiry for the JCC is whether the employer/carrier's assertion of the fraud defense violated the claimant's right to due process.  The JCC in this case had struck the employer/carrier fraud defense as being asserted untimely.  The alleged false statements had been made to an Expert Medical Advisor.  On appeal, court determined that JCC erred in striking this defense since there was no ruling on the due process component of timelyasserting the defense.

Expert Medical Advisors can be appointed when there is conflicting medical evidence by doctors who can render opinions in workers' compensation cases.  This includes authorized treating providers.  A provider can be deemed authorized by operation of law when care is given in emergency situations and in a period during which an employer/carrier wrongfully denies medical treatment.  In order to demonstrate that the care at issue was authorized as a matter of law, however, the claimant must first convince the JCC, via admissible evidence, of certain prerequisite facts as set forth in Section 440.13(2)(c), Florida Statutes.  These facts are akin to elements of proof and as such the law is substantive as set forth in the statute in effect at the time of the claimant's date of accident. Once these facts are proven to the satisfaction of the JCC, the care from unauthorized providers become authorized and only then do the medical opinions of these providers become admissible.

In this case, the applicable version of Section 440.13(2)(c), Florida Statutes, required that the claimant prove that the care at issue was compensable and medically necessary, a specific request for treatment had been made by the claimant, and the employer/carrier had been given a reasonable time period within which to provide the treatment or care.  Since the claimant failed to establish causal relationship or medical necessity by the unauthorized doctor sought to be authorized as a matter of law, the unauthorized doctor's opinion was not admissible.  Accordingly, the JCC's appointment of an EMA based on conflicting medical opinions was improper since the supposed conflicting opinion was not admissible based on the claimant's failure to provide evidence that the unauthorized doctor became authorized as a matter of law.

Case remanded allowing claimant to obtain and present missing evidence showing authorization as a matter of law.  Claimant had relied on the JCC's favorable ruling admitting the unauthorized medical testimony.  The court pointed out that procedurally he could not appeal since the judge's ruling was wholly favorable to him. 

Claimant alleged that JCC committed fundamental error by not appointing, sua sponte, an expert medical advisor (EMA) to resolve the disagreement in medical opinions.  The claimant himself had failed to request the appointment of an expert medical advisor.  Court determined that although a JCC is required to appoint an EMA where there is a disagreement in medical opinions, a party who does not timely seek the appointment of EMA will not be heard on appeal to complain of the failure to designate an EMA.  Court decided issues in case by summary affirmance under Rule of Appellate Procedure 9.315(a).  The parties were directed to refrain from further briefing of the case and the court decided the issue on a summary basis.

The JCC does have jurisdiction to resolve medical dispute.  Unless  timely request is made for the appointment of an EMA, it is the judge's role to resolve such medical disputes.  Even when an EMA is appointed, the JCC may still be called upon to make findings of fact to resolve divergent medical opinions. 

Section 440.29(4), Florida Statutes (2011), allows for the introduction into evidence of medical records from authorized treating health care providers upon proper motion and provided the records were served on the opposing party at least 30 days before the final hearing.  In this case, the party seeking to admit medical records admitted that proper procedures as set forth in this section had not been followed.  Court determined that it was error to have admitted the report into evidence.

The Florida Evidence Code applies to workers' compensation proceedings.  Although Section 440.29(1), Florida Statutes (2011), states that the JCC is not bound by technical or formal rules of procedure, this provision permits the JCC more latitude than judges of general jurisdiction, neither this section nor any other provision of the workers' compensation law excepts workers' compensation hearings from the rules of evidence.  Authentication of evidence is required as a condition precedent to admissibility.  See Section 90.901, Florida Statutes.  In this instance, the authorized treating physician had prepared a "to whom it may concern letter" expressing an opinion that the claimant's medical problems were not caused by the accident in this instance.  Court determined that on its face, this document appeared to have been prepared for the purposes of litigation in that it addressed a legal issue only and was not associated with a medical office visit.  Court determined that the doctor's letter was deemed hearsay not within the exceptions as set forth in Sections 90.803(4) or (6), Florida Statutes.  Court determined that JCC erred in relying on statements made in the doctor's letter.

Treating authorized physician in 2006 indicated that the claimant needed an evaluation by a cardiologist.  JCC denied evaluation since there was no current evidence indicating a need for such an evaluation.  On appeal, court reversed.  There is no legal authority that indicates a recommendation or referral from an authorized doctor can become stale in the absence of a change in the claimant's condition that would affect the need for the recommended evaluation.

Report from independent medical examiner was not properly authenticated and therefore, was not allowed to be considered as evidence in proceedings before JCC.  The exception to authentication provided by Section 440.29(4), Florida Statutes, does not apply to independent medical examinations; The exception only applies to authorized treating physicians reports/records.  See Tutor Time Child Care Learning Centers v. Patterson, 91 So. 3d 264.  Because the IME report should have been excluded from evidence, a vocational expert's opinions based on the excluded medical report should also have been excluded.

Section 440.29(4), Florida Statutes, provides that the medical records of an authorized treating health care provider shall be received into evidence by the JCC upon proper motion. The purpose of this statutory provision is to streamline the evidentiary process and do away with the necessity of calling a records custodian to introduce certain medical records.  This provision only relates to reports of physicians authorized by the employer/carrier to provide the claimant with medical treatment.  It does not apply to independent medical examiners.  The records must be submitted by motion more than 30 days prior to the hearing.  This statutory provision is an exception to Section 90.901, Florida Statutes, requiring the authentication of evidence as a condition precedent to its admissibility.

In accordance with Section 112.18, Florida Statutes, only hypertension that is arterial or cardiovascular qualifies for the presumption of compensability.  In this case, the claimant was diagnosed with essential hypertension.  Unrefuted medical opinion testimony indicated that essential hypertension is the same condition as arterial hypertension.  The court had previously determined that essential hypertension was not covered by the presumption.  However, essential hypertension is not as a matter of law not covered by the presumption.  Such a determination is based on the facts of a case.  Where a claimant seeking to rely on Section 112.18, Florida Statutes, produces no evidence that his hypertension is arterial or cardiovascular, the claimant is not entitled to the presumption of compensability.

A JCC is permitted to reject even unrefuted medical testimony if he gives a reason for doing so in order to allow for appellate review.  In this case, the JCC rejected medical opinion because of the JCC's misunderstanding of the case law that essential hypertension is, as a matter of law, not arterial or cardiovascular.  Such rejection of unrefuted testimony was deemed error in this case.

None of the treating physicians could determine that the claimant's complaints of pain resulted from work related injuries.  None of the physicians had any information about previous injuries or work related injuries.  Accordingly they could not testify as to whether the claimant's problems were related to an accident on the job.  JCC correctly concluded that there was no evidence that the claimant's employment was the major contributing cause of a claimed injury.

JCC erred in rejecting the IMEs unrefuted medical testimony that the claimant should remain off work from the date of accident until she received medical care.  In effect, the IME determined retrospectively for periods of time prior to the date of the evaluation that the claimant could not perform work activities.

Medical and billing records of hospital deemed non-admissible notwithstanding the fact that these records were admitted through the deposition of records custodians.  Records of regularly conducted business activity are admissible under Section 90.803(6), Florida Statutes, if it is shown that they were 1) made at or near the time of the event recorded; 2) by or from information transmitted by a person with knowledge; 3) kept in the regularly conducted business activity and 4) was the regular practice of that business to make such a record.  The parties seeking admissibility of these records in this case failed to elicit evidence of the first and second elements set forth above.  JCC erred in admitting documents into evidence notwithstanding the fact that the objecting party objected at the time of the deposition and at the time of the final hearing.

The failure to object to the testimony of the IME at the time of the doctor's deposition based on the amount the doctor charged for his depositional testimony resulted in the waiver of any argument directed thereto on appeal.  Objection to a doctor's status as an IME must be made at or before the time the medical opinion testimony is rendered.  The court did not reach a decision on the issue of whether an IME loses this status upon charging an impermissible amount for depositional testimony.

JCC in order awarded the payment of medical bill and on appeal court determined that claimant failed to establish an evidentiary basis for the payment of such bills by the employer/carrier.  Case remanded to the JCC for additional proceedings to establish the compensability of such medical bills.  The court specifically stated, however, that in future cases, where the party with the burden of proof fails to establish an evidentiary basis for benefits awarded, a simple reversal will be the appropriate remedy (as opposed to remanding the case to the JCC for further proceedings) absent an exceptional legal or factual basis warranting a contrary result.  The court noted that the mere introduction into evidence of medical bills may not be sufficient to prove entitlement.  Concurring opinion.

Employer/carrier sought to obtain from claimant's attorney a copy of the intake documents created by the claimant's attorney during a confidential consultation with the claimant for the purpose of providing legal advice and services.  The intake documents had been sought for the purpose of obtaining a list of the doctors and the hospitals which treated the claimant and a list of all of the claimant's prior workers' compensation claims that were set forth in the intake documents.  Court determined that the intake documents were protected by the attorney/client privilege.  The claimant had asserted that there was no list of medical providers and prior workers' compensation claims and the only list was included in intake documents prepared by the attorney during a confidential meeting with the claimant.  Claimant's response included a privilege log showing that the lists were contained in a "workers' compensation intake form and questionnaire" completed by the claimant's attorney in a conference with the claimant.  Section 90.502, Florida Statutues (2009) sets forth the attorney/client privilege.

The court determined that the attorney/client privilege is absolute as compared to a litigant's entitlement to work product material upon a showing of need and undue hardship.  The claimant's medical and claims history was discoverable by the employer/carrier and with the exception of the confidential intake sheet, the claimant furnished the employer/carrier with all documents in his possession relating to his medical and claims history.  Although in a civil action the facts listed could be obtained by interrogatories, the rules of procedure applicable to workers' compensation proceedings do not permit interrogatories.  Thus, the employer/carrier's request for a list of physicians, hospitals and prior workers' compensation claims cannot be remedied by treating the request as a mislabeled but otherwise permissible interrogatory.  This information can be obtained by deposing the claimant or utilizing other discovery techniques such as subpoenas and requests to third parties to discover information regarding claimant's medical and claim history.

The question in this case is whether a toxicologist can testify as to the major contributing cause of the claimant's medical condition and whether such condition was occupationally caused.  According to Section 440.09(1), Florida Statutes (2007), medical causation must be established by medical testimony only.  The question in this case is whether the claimant's collapse on the job was caused by chronic alcoholism or a heat stroke.  Although the toxicologist's testimony is admissible with respect to scientific methods and principles, alcohol abuse, and the consequences of long term alcoholism, he was not qualified to testify as to the medical cause of the claimant's injuries.

Even though the toxicologist could not testify as to medical cause, the employer/carrier argued that the JCC's reliance on this inadmissible testimony was harmless.  An error in the introduction of evidence may be considered harmless if the evidence is merely cumulative of other evidence that was properly introduced.  Cumulative evidence means unnecessary evidence or evidence so repetitive that, notwithstanding its exclusion, it is not reasonably likely that a different result would have occurred if such evidence was excluded.  The employer/carrier had argued that the toxicologically evidence was harmless since there was other evidence of record to support the JCC's ultimate conclusion.  Court ruled, however, that where the admission of expert testimony turns on the weight of such testimony, introduction of non-admissible evidence constitutes harmful error.  Because of the fact that the compensability of this case depended upon which expert testimony (conflicting) was to be believed by the JCC, the court determined that the admission into evidence of non-admissible expert testimony was reversable error.

JCC erred in awarding temporary total disability benefits in reliance upon the medical opinion of an unauthorized doctor.  Court remanded case for JCC determination of whether temporary partial benefits were due.  There was admissible evidence which could support an award of temporary partial disability benefits.

Judge erred in awarding hearing aids and attorney's fees pertaining to obtaining those benefits where claimant presented no medical evidence proving that, within a reasonable degree of medical certainty, her hearing loss was causally related to her compensable accident.  JCC rejected doctor's testimony that the need for a hearing aid was not related to the compensable accident.  However, there was no evidence of record showing that the need for the hearing aid was related to the compensable accident.

Claimant's treating physician had been deauthorized by the employer/carrier.  At one time, the provider was authorized.  JCC determined that because of the fact that the doctor was not authorized at the time histestimony was sought to be introduced that he could not testify pursuant to Section 440.13(5)(e), Florida Statutes.

Court determined that statutory provision in regards to which doctors can testify is ambiguous on its face and accordingly, the court must look to legislative intent to determine if such deauthorized medical care provider could testify.  Court determined that precluding the admissibility of a deauthorized physician's medical opinion would contravene the purposes of Section 440.13(5)(e), Florida Statutes, and accordingly such testimony was admissable.  

Because the medical opinion of the deauthorized doctor was contrary to the opinions of a second authorized doctor who testified, the JCC erred in not appointing an expert medical advisor to determine which doctor's opinion should be adopted. 

Where there is a disagreement between the opinions of healthcare providers, an Expert Medical Advisor (EMA) should be appointed. The report or testimony of the EMA is admissible into evidence and the EMA is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC.

JCC determined that the EMA was inconsistent in his opinion and therefore rejected the EMA’s opinion. However, the JCC did not make a finding as to the existence of clear and convincing evidence rebutting the presumed correctness of the EMA’s opinions.  Case remanded for further proceedings.  In distinguishing the facts in this case from the opinion in the case of Fitzgerald v. Osceola County School Board, 974 So. 2d 1161 (Fla. 1st DCA 2008) (in which the court allowed for the JCC non-acceptance of the opinion of the EMA when the EMA gave no opinion on the central issue in dispute) the court determined that the JCC in this case could reject the EMA’s opinions only where there is clear and convincing evidence that contradicts the presumed correctness of the EMA’s opinion.

Notwithstanding the provisions of Section 440.29(1), Florida Statutes (2008), the Florida Evidence Code applies to workers’ compensation proceedings. Authentication of evidence is required as a condition precedent to the admissibility of such evidence. In this case, the employer/carrier offered into evidence a functional capacity evaluation (FCE) but did not establish the authenticity of such report. Although some of the doctors relied on the results of the FCE to varying degrees, such reliance does not make the FCE report admissible for other purposes. In this case, the JCC did not consider the FCE report merely as a foundation for the opinions of some of the doctors. Rather, he assumed the statements in the FCE report to be true and used such statements as a basis to independently analyze the remainder of the evidence. Jcc erred in allowing the admissibility of the FCE for this purpose without proper authentication

In accordance with Section 440.13(5)(e), Florida Statutes (2003), only medical advisors appointed by the JCC, an IME doctor, or an authorized treating physician can testify in proceedings before the JCC. However, when the employer/carrier wrongfully denies medical and the claimant is required to utilize the self help provisions of Section 440.13(2)(c), Florida Statutes, the JCC is not obligated to exclude the opinions of the doctors from whom the claimant was forced to obtain medical treatment. See also Florida Distillers v. Rudd, 751 So. 2d 754, 757 (Fla. 1st DCA 2000).

The employer/carrier has the right to authorize doctors from whom an employee is to receive treatment for a work related injury. When the employer/carrier fails to provide appropriate care, it surrenders to the injured worker the right to select a physician and obtain treatment, provided the care is compensable and medically necessary. When the employer/carrier fails to provide such care and requires the claimant to choose his own doctor, the doctor is allowed to testify in workers’ compensation proceedings. The claimant has the burden of establishing that he made a specific request for the care, allow the employer/carrier a reasonable time to respond, and obtained care that was compensable, reasonable and medically necessary.

The decision in this case allowing claimant's chosen physicians to testify applies only in those circumstances where the employer/carrier wrongfully withholds benefits. For instance, if an employer/carrier suspends benefits based on grounds of fraud or major contributing cause that was warranted and later proven to be correct, the care obtained by the claimant would not be compensable or awardable.

A JCC cannot deny temporary total benefits on the basis that a claimant is able to return to work in the absence of evidence that the claimant was informed or should have known that he was released to return to work. If a JCC denies temporary total benefits to a claimant who is on no work status, the JCC must specifically state in the order that benefits were denied because the claimant knew or should have known he could return to work. In this case, the JCC failed to make the appropriate findings to support his denial of temporary total benefits (a period when claimant was on no work status) and therefore, the denial of benefits for this period was reversed.

JCC found that employer/carrier was responsible for paying for medical care obtained by claimant without specific authorization from employer/carrier since it was wrongfully denied by the employer/carrier and such treatment was reasonable and medically necessary. Accordingly, the opinions of the doctor were admissible into evidence as that of an authorized treating physician pursuant to Section 440.13(5), Florida Statutes.

The issue of entitlement to permanent total disability benefits was ripe for adjudication and it was error for the JCC not to rule on this issue. All physicians who testified opined that the claimant was at MMI and each specifically addressed the claimant

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Employer/carrier asserted on appeal that since there were disagreements between two independent medical examiners regarding causation, the judge was obligated to appoint an expert medical advisor. However, the employer/carrier never requested that the judge appoint an expert medical advisor. Accordingly, this issue was not preserved for appeal. While the judge has an independent duty to appoint an expert medical advisor when the evidence calls for it, failure to do so does not constitute fundamental error and may not be raised for the first time on appeal.

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JCC erred in rejecting the opinion of an expert medical advisor, which had concluded that the claimant’s work injury was the major contributing cause of her major depression and pain disorder. The record on appeal did not contain competent and substantial evidence to support the determination of the JCC that clear and convincing evidence existed sufficient to reject the EMA opinion. Contradiction between the EMA and one of the disagreeing physicians is not, by itself, a reasonable basis for the JCC to reject the EMA’s opinion.

In this case, the JCC erred in determining that the treating chiropractor was authorized by the employer/carrier as a matter of law. No request by the claimant had been made for chiropractic care in addition to that care which had been previously authorized and it was error to determine the chiropractor was authorized when the claimant sought treatment from the doctor without specific authorization from the employer/carrier. Notwithstanding the fact that the chiropractor was not authorized, court determined that there was competent and substantial evidence of record to support the award of temporary benefits to the claimant. The claimant testified that he was unable to work during the period in question and that the authorized treating physician had never advised her she could return to work.

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Court upheld the constitutionality of Section 440.13(5)(e), Florida Statutes, which excludes certain expert medical opinions from evidence that are not from an authorized treating provider, an independent medical examiner, or an appointed expert medical advisor. Court pointed out that it had consistently recognized and upheld the Legislature’s prerogative as to evidentiary issues in workers’ compensation cases.

Claim made for a psychiatric/psychological evaluation and inpatient treatment for his addiction to prescription narcotics. Claimant was deposed and denied having been diagnosed with a prior addiction problem or having previously been a regular user of narcotics. Claim defended by employer/carrier alleging that the claimant lied about having had prior drug problem and attempted to introduce patient records from a drug and alcohol treatment center concerning the claimant indicating that he had received treatment for a long term addiction to narcotics.

In response to the attempt to introduce the drug treatment records, the claimant asserted that the records were privileged under federal law. 42 USC Section 290 dd-2 restricts the disclosure of information relating to the identity, diagnosis, and treatment of a patient in a federally assisted drug or alcohol abuse program. Court determined that judge did not err in concluding that there was good cause for the disclosure of the claimant’s treatment records and therefore, there was no confidentiality of the records in question. Additionally, by denying prior drug use or treatment for a narcotics addiction, the claimant placed himself within an exception to the confidentiality of these records because he offered testimony pertaining to the content of the confidential communications he sought to protect.

Claimant’s caretaker testified that she provided "on call" attendant care for periods in which she would call the claimant from work to check on her. Court determined that a caretaker cannot be compensated for providing attendant care for time spent outside of the claimant’s presence, even if the caretaker is considered "on call."

Not all attendant care services are compensable. Normally, only direct care that is medically necessary is compensable. Attendant care considered medically necessary includes bathing, dressing, administering medication, and assisting with sanitary functions. On the other hand, housekeeping, transportation other than to a doctor and other normal household duties that reflect on quality of life rather than medical necessity are generally considered gratuitous and not compensable. Household services may, in limited circumstances, be compensable if the caretaker (family member or not) substantially departs from his or her daily routine to provide care, or if the claimant is completely prevented from doing such activities on his or her own. No distinction was made in the judge’s order between time spent providing compensable care and non-compensable care. Case remanded to JCC to determine the amount of compensable care provided.
 

JIC need not make specific findings as to why he believes one doctor over another. Does not need to make specific findings as to lack of looking for another job.