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.

Expert Medical Advisor's opinion was struck based on the claimant's Daubert objection (Daubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579(1993) (codified at Section 90.702, F.S.), court determined that upon striking the EMA's opinions, the JCC should have appointed a successor EMA.  The parties stipulated that a condition of the injured worker was related to the compensable accident.  Court determined that JCC's failure to accept the stipulation between the parties was error.  Court held that a joint stipulation of the parties is binding on the JCC.

A decision in favor of the party without the burden of proof need not be supported by competent substantial evidence.  A JCC may reject in whole or in part even uncontroverted testimony the JCC disbelieves.

The employer/carrier's expert witness testified that the claimant's respiratory problems were related to the claimant's 17-year history of smoking rather than the claimant's alleged exposure to debris during the 11 days he worked for the employer.  It was asserted by the claimant that the claimant's IME doctor was not qualified to render such an opinion because he was not a board certifired internist or a pulmonologist.  The determination of a witness's qualifications to express an expert opinion is within the discretion of a trial judge whose decision will not be reversed absent a clear showing of error.  The court in this instance determined that the selection of an IME is not limited to a board certified physician.  The court also stated that there was no need for the testimony of the expert witness in this case to be a pulmonologist, a specialist in the treatment of respiratory disease. In this case, the employer/carrier's IME was a board certified occupational medicine specialist with extensive experience in exposure cases.  A witness may be qualified as an expert through specialized knowledge, training or education, which is not limited to academic, scientific or technical knowledge.  In this case, the doctor's extensive training and experience in exposure cases established his qualifications to opine on the disputed issues of causation.  

In the case of Heckford v. Florida Department of Corrections, 399 So. 2d 247(Fla. 1st DCA 1997), the court had excluded the admissibility of an IME report of a doctor whose opinion had been solicited exclusively and solely for litigation.  The court ruled that the McElroy case did not apply in workers' compensation cases.  There was no showing in this instance that the employer/carrier expert rendered an opinion outside of his areas of expertise as demonstrated by licensure and applicable practice parameters. Such opinion evidence would be prohibited under the specific IME provisions of Section 440.13(5)(a), Florida Statutes.

The issue in this case related to the claimant's attorney's attempt to obtain communications between the employer/carrier and the employer/carrier's expert in regards to a determination as to the reasonable amount of attorney's fees claimed.  The employer/carrier's attorney objected to such information as work product but failed to file a privilege log as to documents being excluded.  The filing of such a privilege log was ordered by the JCC.The documents were identified to the claimant's attorney describing the alleged work product and other privileged information.

Pursuant to Section 440.32(3), Florida Statutes, and Rule 60Q-6.125(4)(a), the JCC denied the Motion for Sanctions and refused to allow for a hearing on the Motion for Sanctions.  From this denial of sanctions and denial of hearing, this appeal was taken.

Under Section 440.32(3), Florida Statutes, sanctions are mandatory and not subject to any specific time limitations other than the pendency of ongoing litigation.  From a procedural standpoint, motions for sanctions must be separately made from other motions and shall describe the specific conduct alleged to violate Section 440.32(3), Florida Statutes.  There is a 21-day safe harbor period within with an offending party or attorney may withdraw a pleading to avoid sanctions.

Court determined in this instance that the rule relating to imposition of sanctions was in conflict with the statutory provisions concerning sanctions. When an administrative rule conflicts with the enabling statute for which the rule was created, the statute will control.  It is axiomatic that an administrative rule cannot enlarge, modify or contravene positions of a statute.  There is no requirement that a rule challenge be made pursuant to the terms of Section 120.56 in order to refuse to enforce the conflicting rule.

The employer/carrier argued that because it prevailed on the issue of production of documents, there was no basis for sanctions.  However, the statute allows for the imposition of sanctions even if such conduct existed if the offending party should prevail in any aspect of the pleading or motion.  However, the court ruled that sanctions for pleadings, motions or other papers that are interposed for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation can be the subject of sanctions without regard to the actual merits or outcome.  Section 440.32 makes no reference to a safe harbor provision that is contained in the rule allowing for such.  The safe harbor rule cannot be viewed as a procedural amendment to the statute and the administrative rule should be interpreted harmoniously with the statutory language of Section 440.32(3), Florida Statutes.  Court determined that the rule should not be applied to the extent that it precludes a filing of a motion for sanctions under the plain language of Section 440.32(3), Florida Statutes, which does not allow for a safe harbor provision.

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).

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.

Claimant, a correctional officer, claimed benefits under the heart and hypertension bill and the presumptions associated with that condition as found in Section 112.18, Florida Statutes.  The claimant's IME doctor testified that he did not know the cause of the claimant's heart attack. The employer/carrier's IME doctor testified that the heart attack claimed to be compensable was caused by risk factors personal to the claimant and not work related. Court determined that the medical evidence was not conflicting that would require the appointment of an EMA but nonetheless, based upon the agreement of the parties, an EMA was appointed. The EMA testified that the claimant's heart attack was work related notwithstanding the several risk factors as noted by the employer/carrier's IME doctor.

The opinions of an Expert Medical Advisor are presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC.  An EMA opinion must comply with the Florida Evidence Code including Daubert since the Florida Evidence Code applies in  workers' compensation proceedings.  Under the Evidence Code, as amended in 2013 to codify Daubert, expert testimony must be based on sufficient facts or data which are the product of reliable principles and methods and applied reliably to the facts of particular cases.  See Section 90.702, Florida Statutes.

Court determined that the employer/carrier's objection to the opinions of the EMA were well founded and it was error to not sustain the objections.

The EMA's opinion was based on an inaccurate factual foundation.  It was the EMA's opinion that the claimant's heart condition was caused by his long employment with the employer.  However, from a factual basis, the claimant had only worked as a correctional officer for a short period of time.  The EMA doctor was under the understanding that the claimant had suffered unusual stress related conditions as a correction officer for several years when in fact, he had only been exposed for two months.

The court also found that the EMA doctor improperly bolstered his opinion.  Experts are prohibited from bolstering their opinions by reference to the opinions of non-testifying expert or opinions expressed in treatises authored by others.  Expert testimony must be based on precepts generally accepted in the scientific community.  After the Legislature's adoption of Daubert, pure opinion testimony based only on clinical experience and training is not admissible, Daubert requires expert opinions to be based on scientific knowledge to assure relevance and reliability, Section 90.706 of the Florida Evidence Code prohibits the use of authoritative literature except on cross-examination. See Linn v. Fossum, 946 So. 2d 1032, 1039 (Fla. 2006) which the court designated the "seminal case" on improper bolstering.

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 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.

Court determined that videotape of employer/carrier IME evaluation constitutes work product because it was made in anticipation of litigation or for trial.  The purpose of the videotape that was ordered by the claimant's counsel was to ensure that the employer/carrier's IME was administered fairly and properly. Since the video constituted work product, it was not subject to production as requested by the counsel for the employer/carrier.  However, the privilege is waived or evaporates once the party claiming the privilege elects to use the material at trial.  All matters reasonably expected or intended to be used at trial, including documents intended solely for witness impeachment, are not protected by the work product privilege.  Court reversed JCC in this case who had entered an order requiring the production of the videotapes.  There was a lack of evidence in the record demonstrating that the claimant's attorney intended to use the video of the IME as evidence in the hearing.

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.

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.

JCC excluded depositional testimony because the witness was not on the pre-trial stipulation entered into between the parties.  A JCC's exclusion of evidence is reviewed for abuse of discretion.  In this case, the JCC made no findings to explain why she had excluded the depositional testimony.  The purported prejudice to the claimant's attorney that he was not aware that the deposition was going to be offered into evidence does not rise to the level of surprise or unfair disadvantage warranting the exclusion of such testimony.  Since there was no prejudice demonstrated, the court concluded that the JCC abused her discretion in excluding the evidence.  Because the excluded evidence could have had an impact on the award of benefits, the award is reversed and remanded for consideration of the testimony of the witness whose deposition was excluded.

The court also determined that awarded attendant care was not supported by evidence of record.  It is the claimant's burden of proving the quantity, quality and duration of an attendant care claim. A blanket award of attendant care without regard to actual performance of those services was deemed to be error.  Only the time actually spent in the performance of services should be awarded in regards to the payment of attendant care.

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.

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.

Claimant, a minor, was injured working for the employer in violation of Federal Immigration Law and Section 440.061(1)(f), Florida Statutes, prohibiting employment of children under the age of 16 in heavy work in the building trades.  The claimant had been employed through an intermediary who was also an employee of the employer.  The claimant testified that the intermediary was aware of his age and the fact that he had been employed unlawfully in violation of immigration laws.

The JCC denied compensation benefits to the claimant because the claimant had not reported his wages to the IRS.  See Section 440.02(28), Florida Statutes.  The claimant testified that he did report his wages to the IRS but the JCC denied such testimony and refused to order the payment of compensation since, based on the best evidence rule, the claimant failed to introduce into evidence his tax returns.  The JCC did not reject the claimant's testimony as being untruthful but invoked the best evidence rule to conclude that there was no competent and substantial evidence that would support a conclusion that the claimant reported the wages.  On appeal, court determined that this was error.  The best evidenc rule addresses the admissibility of evidence not its weight.  In addition, the employer/carrier did not object to the claimant's testimony based on the best evidence rule.

Federal law requires employers to report and withhold taxes from wages paid to employees.  Proof that wages have been reported for federal income tax purposes by the employee or the employer satisfies the plain language of the statute that in order to include wages in the average weekly wage calculation, wages must be reported to the federal government.  A presumption arises on payment of wages that the employer has withheld an appropriate amount as income taxes.  Court regarded as dicta any language in the case of Fast Tract Framing, Inc. v. Caraballo, 994 So. 2d 355, that suggested that only wages reported by the employee may be included in the statutory definition of wages.

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.

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.

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. 

JCC abused his discretion in dismissing with prejudice all petitions and claims for benefits following the claimant's refusal to answer certain questions during her deposition related to her immigration status.  Claimant refused to answer such question invoking her Fifth Amendment privilege against self incrimination.  Employer/carrier failed to demonstrate meaningful prejudice resulting from the claimant's refusal to answer. 

Questions of whether a JCC's dismissal of a workers' compensation claim is an appropriate means of relieving prejudice to the employer/carrier stemming from a claimant's invocation of the Fifth Amendment privilege against self incrimination is an issue the court reviews based on the abuse of discretion standards.  Dismissals with prejudice are the most severe of all sanctions and should be employed only in extreme circumstances.  Dismissal is inappropriate when the moving party is unable to demonstrate meaningful prejudice.  In this case, the employer/carrier alleged generally that its discovery and defenses would be thwarted by the claimant's refusal to answer questions about her immigration status, the employer/carrier failed to demonstrate meaningful prejudice resulting from claimant's refusal to answer.  JCC erred in dismissing all petitions and claims for benefits with prejudice.

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. 

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.

It is undisputed that a JCC may order an IME on his or her own motion. The court determined that the JCC did not err in allowing the claimant to introduce additional evidence following a post-hearing IME directed by the JCC. Additional evidence may be allowed if one of the parties is allowed or directed to submit additional evidence after the hearing. However, an IME ordered by the JCC is party-neutral in that it is not submitted at the behest of either party.

Court determined that JCC erred in denying temporary partial benefits for a designated period of time since the treating physician had released the claimant to return to work with restrictions and the claimant had limited his job search to only one contact. There was no record evidence, however, that the doctor had instructed the claimant to return to work. Evidence that the claimant is able to return to work is not sufficient to deny temporary benefits in the absence of evidence that the claimant was informed or should have known that he or she was released 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.

On Motion for Rehearing/Clarification. Original opinion at 30 FLW D57. Prior opinion withdrawn. 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.
 

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.