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Fla. L. Weekly D426bTop of Form
Fla. L. Weekly D426bTop of Form
Workers’
compensation — Evidence — Judge of compensation claims erred in excluding
deposition of employer/carrier’s adjuster on basis that deposition was taken
within 10 days of final hearing in violation of administrative rule — In
excluding deposition, JCC did not correctly consider prejudice — JCC should
have considered prejudice to the objecting party if the evidence was admitted,
not the party seeking to introduce the evidence — Exclusion of adjuster’s
deposition was not harmless where it contained testimony that employer/carrier
had accepted “the cervical spine” or “the neck” as the compensable injury, and
such evidence arguably goes directly to claimant’s assertion that
employer/carrier accepted compensability of his entire cervical condition, thus
precluding employer/carrier from relying on expert medical advisor’s opinion
that part or all of claimant’s cervical condition preexisted the industrial
accident — Because JCC had rejected claimant’s argument that employer/carrier
were estopped from asserting a major contributing cause defense because they
had failed to deny compensability within 120 days of initially providing
benefits based on JCC’s acceptance of expert medical advisor’s opinion that
compensable injury was solely a temporary exacerbation, case is remanded for
reconsideration of 120-day rule issue in light of adjuster’s deposition
compensation — Evidence — Judge of compensation claims erred in excluding
deposition of employer/carrier’s adjuster on basis that deposition was taken
within 10 days of final hearing in violation of administrative rule — In
excluding deposition, JCC did not correctly consider prejudice — JCC should
have considered prejudice to the objecting party if the evidence was admitted,
not the party seeking to introduce the evidence — Exclusion of adjuster’s
deposition was not harmless where it contained testimony that employer/carrier
had accepted “the cervical spine” or “the neck” as the compensable injury, and
such evidence arguably goes directly to claimant’s assertion that
employer/carrier accepted compensability of his entire cervical condition, thus
precluding employer/carrier from relying on expert medical advisor’s opinion
that part or all of claimant’s cervical condition preexisted the industrial
accident — Because JCC had rejected claimant’s argument that employer/carrier
were estopped from asserting a major contributing cause defense because they
had failed to deny compensability within 120 days of initially providing
benefits based on JCC’s acceptance of expert medical advisor’s opinion that
compensable injury was solely a temporary exacerbation, case is remanded for
reconsideration of 120-day rule issue in light of adjuster’s deposition
JAMES
D. BOYLE, Appellant, v. JA CUMMINGS, INC./FARA, Appellees. 1st District. Case
No. 1D16-3076. Opinion filed February 16, 2017. An appeal from an order of
Judge of Compensation Claims. Daniel A. Lewis, Judge. Date of Accident: May 12,
2014. Counsel: Bill McCabe, Longwood, and Joey D. Oquist, St. Petersburg, for
Appellant. H. George Kagan, of Miller, Kagan, Rodriguez & Silver, P.L.,
West Palm Beach, for Appellees.
D. BOYLE, Appellant, v. JA CUMMINGS, INC./FARA, Appellees. 1st District. Case
No. 1D16-3076. Opinion filed February 16, 2017. An appeal from an order of
Judge of Compensation Claims. Daniel A. Lewis, Judge. Date of Accident: May 12,
2014. Counsel: Bill McCabe, Longwood, and Joey D. Oquist, St. Petersburg, for
Appellant. H. George Kagan, of Miller, Kagan, Rodriguez & Silver, P.L.,
West Palm Beach, for Appellees.
(B.L.
THOMAS, J.) In this workers’ compensation case, Appellant challenges an order
of the Judge of Compensation Claims (JCC) denying all requested benefits. In
five issues on appeal, Appellant challenges the exclusion of evidence and the
rejection of his argument based on the “120-day rule,” section 440.20(4),
Florida Statutes. Although we affirm without further comment the exclusion of
the authorized treating providers’ medical records, we agree with Appellant
that exclusion of the adjuster’s deposition was error, and conclude that the error
was not harmless, as the evidence affects the 120-day rule analysis.
Accordingly, we remand for further proceedings.
THOMAS, J.) In this workers’ compensation case, Appellant challenges an order
of the Judge of Compensation Claims (JCC) denying all requested benefits. In
five issues on appeal, Appellant challenges the exclusion of evidence and the
rejection of his argument based on the “120-day rule,” section 440.20(4),
Florida Statutes. Although we affirm without further comment the exclusion of
the authorized treating providers’ medical records, we agree with Appellant
that exclusion of the adjuster’s deposition was error, and conclude that the error
was not harmless, as the evidence affects the 120-day rule analysis.
Accordingly, we remand for further proceedings.
Appellant
was injured, and Appellees Employer-Carrier authorized multiple health care
providers to treat Appellant, who was unable to perform his regular job duties
and was eventually terminated. He later filed petitions for benefits seeking
temporary indemnity benefits, neck surgery as recommended by an authorized
doctor, and penalties, interest, costs, and attorney’s fees.
was injured, and Appellees Employer-Carrier authorized multiple health care
providers to treat Appellant, who was unable to perform his regular job duties
and was eventually terminated. He later filed petitions for benefits seeking
temporary indemnity benefits, neck surgery as recommended by an authorized
doctor, and penalties, interest, costs, and attorney’s fees.
Appellees
contested those benefits and obtained an independent medical examination, which
resulted in a medical opinion that the major contributing cause of Appellant’s
pain was due to preexisting conditions. Appellant then filed four “Notices of
Filing” whereby he submitted medical records from the four authorized treating
providers; all four notices were served on Appellees. Thereafter, the JCC
appointed an expert medical advisor, who also opined that preexisting
conditions were the major contributing cause of Appellant’s need for surgery.
contested those benefits and obtained an independent medical examination, which
resulted in a medical opinion that the major contributing cause of Appellant’s
pain was due to preexisting conditions. Appellant then filed four “Notices of
Filing” whereby he submitted medical records from the four authorized treating
providers; all four notices were served on Appellees. Thereafter, the JCC
appointed an expert medical advisor, who also opined that preexisting
conditions were the major contributing cause of Appellant’s need for surgery.
The
expert medical advisor was not charged with determining the identity of the
compensable injury, but in deposition added that the only injury the work
accident caused was a temporary exacerbation of a preexisting condition. Appellant
then argued that Appellees were legally estopped from asserting a major
contributing cause defense, because Appellees had failed to deny
compensability, except a temporary exacerbation, within 120 days of Appellees
initially providing benefits.
expert medical advisor was not charged with determining the identity of the
compensable injury, but in deposition added that the only injury the work
accident caused was a temporary exacerbation of a preexisting condition. Appellant
then argued that Appellees were legally estopped from asserting a major
contributing cause defense, because Appellees had failed to deny
compensability, except a temporary exacerbation, within 120 days of Appellees
initially providing benefits.
Just
before the final hearing, Appellant deposed Appellees’ adjuster. Appellees
objected to admission of the deposition under Florida Administrative Code Rule
60Q-6.113(8), which prohibits discovery within ten calendar days of the final
hearing “absent prior approval . . . for good cause shown” (or by agreement of
the parties). Appellant alleged, however, that Appellees had balked at earlier
attempts to schedule the adjuster’s deposition. The objection was sustained.
before the final hearing, Appellant deposed Appellees’ adjuster. Appellees
objected to admission of the deposition under Florida Administrative Code Rule
60Q-6.113(8), which prohibits discovery within ten calendar days of the final
hearing “absent prior approval . . . for good cause shown” (or by agreement of
the parties). Appellant alleged, however, that Appellees had balked at earlier
attempts to schedule the adjuster’s deposition. The objection was sustained.
We
reverse the exclusion of the adjuster’s deposition, because the JCC did not
correctly consider prejudice, of which good cause is but one component. The JCC
mentioned good cause orally during the hearing, and in the written final order
and order on rehearing noted that Appellant had not sought permission to take
the adjuster’s deposition beyond the rule’s deadline. The JCC further noted
that he had not stricken the witness, but only that particular deposition,
suggesting Appellant could have subpoenaed the adjuster to appear at the
hearing.
reverse the exclusion of the adjuster’s deposition, because the JCC did not
correctly consider prejudice, of which good cause is but one component. The JCC
mentioned good cause orally during the hearing, and in the written final order
and order on rehearing noted that Appellant had not sought permission to take
the adjuster’s deposition beyond the rule’s deadline. The JCC further noted
that he had not stricken the witness, but only that particular deposition,
suggesting Appellant could have subpoenaed the adjuster to appear at the
hearing.
But
the JCC’s consideration of prejudice resulting from exclusion of the deposition
is off the mark, as the JCC should primarily have considered prejudice to the objecting
party if the evidence was admitted, not the party seeking to introduce the
evidence. In addressing a JCC’s refusal to allow a claimant to depose doctors
after the employer-carrier refused to cooperate with scheduling, this court
stated:
the JCC’s consideration of prejudice resulting from exclusion of the deposition
is off the mark, as the JCC should primarily have considered prejudice to the objecting
party if the evidence was admitted, not the party seeking to introduce the
evidence. In addressing a JCC’s refusal to allow a claimant to depose doctors
after the employer-carrier refused to cooperate with scheduling, this court
stated:
Although this court decidedly does not condone violations of
deadlines contained in pretrial orders (an occurrence not apparent in this
case), in workers’ compensation proceedings, even the testimony of undisclosed
witnesses can be allowed into evidence upon a case-specific determination as to
whether admission of the evidence would result in actual procedural prejudice
to the objecting party.
deadlines contained in pretrial orders (an occurrence not apparent in this
case), in workers’ compensation proceedings, even the testimony of undisclosed
witnesses can be allowed into evidence upon a case-specific determination as to
whether admission of the evidence would result in actual procedural prejudice
to the objecting party.
. . .
The exclusion of evidence is a drastic remedy, which should
occur only in the most compelling circumstances, and only after the JCC has
made a case-specific determination as to whether the admission of the evidence
would result in actual procedural prejudice to the objecting party. . . . [T]he
JCC quashed depositions set by Claimant, and denied all of Claimant’s attempts
to present medical testimony without considering any discretionary factors such
as prejudice.
occur only in the most compelling circumstances, and only after the JCC has
made a case-specific determination as to whether the admission of the evidence
would result in actual procedural prejudice to the objecting party. . . . [T]he
JCC quashed depositions set by Claimant, and denied all of Claimant’s attempts
to present medical testimony without considering any discretionary factors such
as prejudice.
Burgess
v. Buckhead Beef, 15 So. 3d 25, 27 (Fla. 1st DCA 2009) (citations omitted).
The JCC’s interpretation that the rule would require prior approval1 (or at least a prior request for late
discovery) was error, given both the undergirding principle that relevant
evidence should be considered by the factfinder and the intent of the Workers’
Compensation Law that cases be decided on their merits. See § 90.402,
Fla. Stat. (“All relevant evidence is admissible, except as provided by law.”);
§ 440.015, Fla. Stat. (“It is the specific intent of the Legislature that
workers’ compensation cases shall be decided on their merits.”); Burgess,
15 So. 3d at 27 (“Here, the JCC’s exclusion of testimony from properly
disclosed witnesses, based on a per se application of his interpretation
of the administrative rules, is . . . in direct conflict with the specific
legislative intent of the Florida Workers’ Compensation Law.”).
v. Buckhead Beef, 15 So. 3d 25, 27 (Fla. 1st DCA 2009) (citations omitted).
The JCC’s interpretation that the rule would require prior approval1 (or at least a prior request for late
discovery) was error, given both the undergirding principle that relevant
evidence should be considered by the factfinder and the intent of the Workers’
Compensation Law that cases be decided on their merits. See § 90.402,
Fla. Stat. (“All relevant evidence is admissible, except as provided by law.”);
§ 440.015, Fla. Stat. (“It is the specific intent of the Legislature that
workers’ compensation cases shall be decided on their merits.”); Burgess,
15 So. 3d at 27 (“Here, the JCC’s exclusion of testimony from properly
disclosed witnesses, based on a per se application of his interpretation
of the administrative rules, is . . . in direct conflict with the specific
legislative intent of the Florida Workers’ Compensation Law.”).
Furthermore,
exclusion of the adjuster’s deposition is not harmless here, because it
contained testimony that Appellees had accepted “the cervical spine” or “the
neck” as the compensable injury. Such testimony arguably goes directly to
Appellant’s assertion that Appellees accepted compensability of his entire
cervical condition, thus, Appellees were precluded from relying on the expert
medical advisor’s opinion that part (or all) of the cervical condition
preexisted the industrial accident. See generally Special v. West
Boca Med. Ctr., 160 So. 3d 1251, 1253 (Fla. 2014) (holding that to
demonstrate harmless error, beneficiary of error must prove “no reasonable
possibility that the error . . . contributed to the verdict”); Jackson v.
Merit Elec., 37 So. 3d 381 (Fla. 1st DCA 2010) (holding that stipulation
that compensable injury included “the back” estopped employer-carrier from
challenging industrial causation of back injury). Because the JCC’s rejection
of the 120-day rule argument was based on his having accepted the expert
medical advisor’s opinion that the compensable injury was solely a temporary
exacerbation — an opinion that might have been legally precluded here — we
remand the case for the JCC to reconsider the 120-day rule issue, in light of the
adjuster’s deposition.
exclusion of the adjuster’s deposition is not harmless here, because it
contained testimony that Appellees had accepted “the cervical spine” or “the
neck” as the compensable injury. Such testimony arguably goes directly to
Appellant’s assertion that Appellees accepted compensability of his entire
cervical condition, thus, Appellees were precluded from relying on the expert
medical advisor’s opinion that part (or all) of the cervical condition
preexisted the industrial accident. See generally Special v. West
Boca Med. Ctr., 160 So. 3d 1251, 1253 (Fla. 2014) (holding that to
demonstrate harmless error, beneficiary of error must prove “no reasonable
possibility that the error . . . contributed to the verdict”); Jackson v.
Merit Elec., 37 So. 3d 381 (Fla. 1st DCA 2010) (holding that stipulation
that compensable injury included “the back” estopped employer-carrier from
challenging industrial causation of back injury). Because the JCC’s rejection
of the 120-day rule argument was based on his having accepted the expert
medical advisor’s opinion that the compensable injury was solely a temporary
exacerbation — an opinion that might have been legally precluded here — we
remand the case for the JCC to reconsider the 120-day rule issue, in light of the
adjuster’s deposition.
Given
the remand for the JCC to consider the adjuster’s deposition, we do not reach
the points on appeal not addressed in this opinion. AFFIRMED in part, REVERSED
in part, and REMANDED for further proceedings. (OSTERHAUS and BILBREY, JJ.,
CONCUR.)
the remand for the JCC to consider the adjuster’s deposition, we do not reach
the points on appeal not addressed in this opinion. AFFIRMED in part, REVERSED
in part, and REMANDED for further proceedings. (OSTERHAUS and BILBREY, JJ.,
CONCUR.)
__________________
1The
JCC did not make precisely clear what specific event he thought the approval or
request should be made prior to — the taking of the deposition, or the ten-day
period, or some other date or event.
JCC did not make precisely clear what specific event he thought the approval or
request should be made prior to — the taking of the deposition, or the ten-day
period, or some other date or event.
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