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Fla. L. Weekly D351bop of Form
Fla. L. Weekly D351bop of Form
Workers’
compensation — Evidence — Rather than excluding opinion of expert medical
advisor, judge of compensation claims should have admitted the opinion into
evidence without attributing to it the presumption of correctness — Temporary
total disability — Judge of compensation claims erred in relying on expert
medical advisor to deny temporary total disability benefits, despite evidence
that claimant’s authorized treating provider had taken him off work entirely
and never informed him that he could return to work
compensation — Evidence — Rather than excluding opinion of expert medical
advisor, judge of compensation claims should have admitted the opinion into
evidence without attributing to it the presumption of correctness — Temporary
total disability — Judge of compensation claims erred in relying on expert
medical advisor to deny temporary total disability benefits, despite evidence
that claimant’s authorized treating provider had taken him off work entirely
and never informed him that he could return to work
HILLSBOROUGH
COUNTY SCHOOL BOARD/BROADSPIRE, Appellants, v. JOHN E. KUBIK, Appellee. 1st
District. Case No. 1D16-1053. Opinion filed February 10, 2017. An appeal from
an order of the Judge of Compensation Claims. Ellen H. Lorenzen, Judge. Dates
of Accident: June 24, 2009 and April 12, 2011. Counsel: Debra M. Metzler of Barr,
Murman & Tonelli, P.A., Tampa, for Appellants. Craig O. Stewart of Morgan
& Morgan, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, P.A.,
Tallahassee, for Appellee.
COUNTY SCHOOL BOARD/BROADSPIRE, Appellants, v. JOHN E. KUBIK, Appellee. 1st
District. Case No. 1D16-1053. Opinion filed February 10, 2017. An appeal from
an order of the Judge of Compensation Claims. Ellen H. Lorenzen, Judge. Dates
of Accident: June 24, 2009 and April 12, 2011. Counsel: Debra M. Metzler of Barr,
Murman & Tonelli, P.A., Tampa, for Appellants. Craig O. Stewart of Morgan
& Morgan, P.A., Tampa, and Wendy S. Loquasto of Fox & Loquasto, P.A.,
Tallahassee, for Appellee.
(PER
CURIAM.) In this workers’ compensation appeal, we reverse one of the three issues
presented on direct appeal, and one of the three issues presented in the
cross-appeal. We affirm the remaining issues without further comment.
CURIAM.) In this workers’ compensation appeal, we reverse one of the three issues
presented on direct appeal, and one of the three issues presented in the
cross-appeal. We affirm the remaining issues without further comment.
In
the challenged order, the Judge of Compensation Claims (JCC) excluded the
opinion of the expert medical advisor (EMA) about causation of the need for
treatment of Claimant’s neck. On appeal, the Employer/Carrier argues that the
JCC should instead have admitted the opinion into evidence without attributing
to it the presumption of correctness prescribed in subsection 440.13(9),
Florida Statutes. We agree. Lowe’s Home Ctrs., Inc. v. Beekman, 187 So.
2d 318 (Fla. 1st DCA 2016) (holding EMA’s opinion beyond scope of inquiry was
admissible but not presumptively correct). The error was not harmless because
the JCC’s perception that a preexisting condition’s worsening could not create
a break in the causal chain was formed without the benefit of Certistaff,
Inc. v. Owen, 181 So. 3d 1218 (Fla. 1st DCA 2015).
the challenged order, the Judge of Compensation Claims (JCC) excluded the
opinion of the expert medical advisor (EMA) about causation of the need for
treatment of Claimant’s neck. On appeal, the Employer/Carrier argues that the
JCC should instead have admitted the opinion into evidence without attributing
to it the presumption of correctness prescribed in subsection 440.13(9),
Florida Statutes. We agree. Lowe’s Home Ctrs., Inc. v. Beekman, 187 So.
2d 318 (Fla. 1st DCA 2016) (holding EMA’s opinion beyond scope of inquiry was
admissible but not presumptively correct). The error was not harmless because
the JCC’s perception that a preexisting condition’s worsening could not create
a break in the causal chain was formed without the benefit of Certistaff,
Inc. v. Owen, 181 So. 3d 1218 (Fla. 1st DCA 2015).
Also
in this order, the JCC relied on the EMA to deny temporary total disability
(TTD) benefits, despite evidence that Claimant’s authorized treating provider
had taken him off work entirely and never informed him that he could return to
work. On cross-appeal, Claimant argues that the JCC should instead have relied
on case law holding that an injured worker can rely on an authorized treating
provider’s instruction to refrain from working, “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). We agree with
Claimant that his reliance on his doctor’s instruction can support a TTD claim.
in this order, the JCC relied on the EMA to deny temporary total disability
(TTD) benefits, despite evidence that Claimant’s authorized treating provider
had taken him off work entirely and never informed him that he could return to
work. On cross-appeal, Claimant argues that the JCC should instead have relied
on case law holding that an injured worker can rely on an authorized treating
provider’s instruction to refrain from working, “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). We agree with
Claimant that his reliance on his doctor’s instruction can support a TTD claim.
For
the foregoing reasons, the case is remanded for reconsideration of the
causation question given the admissible evidence, and for findings on the
appropriate time period for the TTD award to which Claimant is entitled.
the foregoing reasons, the case is remanded for reconsideration of the
causation question given the admissible evidence, and for findings on the
appropriate time period for the TTD award to which Claimant is entitled.
AFFIRMED
IN PART, REVERSED IN PART, AND REMANDED. (LEWIS, BILBREY, and WINOKUR, JJ.,
CONCUR.)
IN PART, REVERSED IN PART, AND REMANDED. (LEWIS, BILBREY, and WINOKUR, JJ.,
CONCUR.)
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