42
Fla. L. Weekly D174bTop of Form

Workers’
compensation — Evidence — Challenge to judge of compensation claims’
application of Daubert test codified in section 90.702

DAVID
M. BARICKO, Appellant, v. BARNETT TRANSPORTATION, INC. and YORK RISK SERVICES
GROUP, Appellees. 1st District. Case No. 1D16-1304. Opinion filed January 17,
2017. An appeal from an order of Judge of Compensation Claims. Mark A. Massey,
Judge. Date of Accident: August 15, 2013. Counsel: Michael J. Winer and John F.
Sharpless of Law Office of Michael J. Winer, P.A., Tampa, for Appellant.
Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando, for Appellees.

(PER
CURIAM.) AFFIRMED. (WOLF and LEWIS, JJ., CONCUR; WETHERELL, J., CONCURS WITH OPINION.)

__________________

(WETHERELL,
J., concurring.) Amongst the six issues raised by the Claimant in this workers’
compensation appeal is a claim that the Judge of Compensation Claims (JCC)
erred in applying the Daubert1 test codified in section 90.702,
Florida Statutes, because that test is not applicable unless and until it is
adopted by the Florida Supreme Court in In re Amendments to the Florida
Evidence Code, Case No. SC16-181. This claim is unpreserved, and it is also
frivolous.

This
court specifically held in Giaimo v. Florida Autosport, Inc., 154 So. 3d
385, 388 (Fla. 1st DCA 2014), that the Daubert test now applies in
workers’ compensation proceedings. See also Booker v. Sumter Cty.
Sheriff’s Office, 166 So. 3d 189 (Fla. 1st DCA 2015). Although not
explicated in the opinion, this holding was grounded on the settled principle
that “the Florida Evidence Code applies in workers’ compensation proceedings,” United
States Sugar Corp. v. G.J. Henson, 823 So. 2d 104, 107 (Fla. 2002), and the
fact that the Daubert test is now specifically codified in the Florida
Evidence Code. See ch. 2013-107, § 1, Laws of Fla. (amending § 90.702,
Fla. Stat.); § 90.101, Fla. Stat. (“This chapter shall be known and may be
cited as the ‘Florida Evidence Code.’ ”). The JCC was bound by Giaimo —
and the plain language of section 90.702 — and therefore did not err in
applying the Daubert test.

Additionally,
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,2 it is well established that 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. See
Amendments to the Fla. Rules of Workers’ Comp. Procedure, 891 So. 2d
474, 478 (Fla. 2004) (“Given that the [Office of Judges of Compensation Claims]
is not an article V court, but rather part of an executive branch department,
we find that this Court has no authority under the Florida Constitution . . .
to promulgate rules of practice and procedure for this executive entity.”).
Accordingly, even if in In re Amendments to the Florida Evidence Code, supra,
the Court declines to adopt the Daubert test in section 90.702 for
judicial proceedings because the test is procedural in nature,3 that decision will have no impact
whatsoever on the applicability of the Daubert test in workers’
compensation proceedings.

Finally,
this claim was recently considered — and rejected as meritless — by our
sister court in Crane Co. v. DeLisle, 2016 WL 6658470 (Fla. 4th DCA Nov.
9, 2016):

[The plaintiff] also argues that this court lacks the
authority to apply Daubert, as incorporated through section 90.702,
Florida Statutes . . . because it is a legislative change to the evidence code
that has not yet been approved by the Florida Supreme Court. However, statutes
are presumed to be constitutional and are to be given effect until declared
otherwise. Further, we, and other Florida appellate courts, have applied the
statute to the admission of testimony. We therefore find that this argument
lacks merit.

Id. at
*3 n.7 (citations omitted).

For
these reasons (and because the other five issues raised by the Claimant lack
merit and do not warrant a written opinion), I concur in the disposition of
this appeal by a “PCA.”

__________________

1Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

2This
provision states in relevant part: “The supreme court shall adopt rules for the
practice and procedure in all courts . . . .” (emphasis added).

3See, e.g.,
In re Amendments to Fla. Evidence Code, 782 So. 2d 339, 341-42 (Fla.
2000) (recognizing that the Florida Evidence Code contains both substantive law
and procedural requirements and adopting all of the amendments to the Code
enacted by the Legislature from 1996 to 1999 “to the extent they are
procedural,” except for the 1998 amendment to the former testimony hearsay
exception in section 90.803(22), Florida Statutes).

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