Amos v. Gartner, Inc.

Citation17 So.3d 829
Decision Date21 August 2009
Docket NumberNo. 1D08-6211.,1D08-6211.
PartiesPeggy AMOS, Appellant, v. GARTNER, INC. and Sentry Insurance, Appellees.
CourtCourt of Appeal of Florida (US)

Bill McCabe, Longwood, and Chad J. Motes, Fort Myers, for Appellant.

Brooke A. Dubbeld of Dubbeld & Kaelber, P.A., St. Petersburg, for Appellees.

VAN NORTWICK, J.

In this workers' compensation appeal, Peggy Amos, claimant, seeks reversal of an order of the Judge of Compensation Claims (JCC) denying her claim for permanent total disability (PTD) benefits and argues four grounds for reversal. Because we agree that the JCC reversibly erred by utilizing an improper legal standard for rejecting the opinion of the expert medical examiner (EMA), and by admitting a functional capacity evaluation (FCE) report into evidence over claimant's hearsay and authenticity objections, we reverse and remand for further proceedings. In view of our holding, we need not reach the merits of claimant's remaining arguments that the JCC erred in denying PTD benefits, penalties, interest, costs, and attorney's fees.

Background

Prior to her workplace accident of April 6, 2005, claimant, a 59 year-old clerical worker, had three surgeries on her lower back, the last being a lumbar fusion. For her preexisting lumbar problem, claimant obtained a continuing prescription for pain medication, which was taken on an as-needed basis. At the time of claimant's workplace accident, she had not seen a physician for her lower back for the better part of a year. On April 6, 2005, claimant fell down a flight of twenty-two stairs, injuring her neck and aggravating the lumbar injuries. Gartner, Inc. and Sentry Insurance, the employer/carrier, authorized Dr. Dusseau, who treated both conditions (which treatment included a cervical fusion), placed claimant at maximum medical improvement (MMI), and, on July 25, 2007, placed her on a no-work status. Claimant filed a claim for PTD benefits from July 25, 2007, and continuing. In response, the employer/carrier obtained an independent medical examination (IME) with Dr. Glasser, who opined that claimant's injuries (both cervical and lumbar) and resulting restrictions were not caused in major part by her workplace injury. The employer/carrier denied claimant's claim for PTD on the basis of the IME opinion. Based on a disagreement in medical opinions, the employer/carrier moved for appointment of an EMA, which the JCC granted. The JCC wrote a letter to the EMA, posing five questions relating to: (1) claimant's diagnosed conditions; (2) the major contributing cause of the diagnosed conditions; (3) whether claimant had reached MMI and had a permanent impairment; (4) whether there were permanent restrictions; and (5) apportionment. The JCC directed the parties to furnish to the EMA all necessary medical records.

The EMA prepared a narrative report in which he provided, inter alia, his opinion as to the diagnosis with respect to claimant's lower back condition1 (lumbar myofascial syndrome and chronic pain syndrome of lumbar and myofascial origin), which was caused in major part (60%) by the workplace accident. As to work restrictions, the EMA opined that claimant was capable of "limited sedentary work" consistent with an FCE report. In addition to his narrative report, the EMA "presumably" hand-wrote responses to the JCC's questions on the JCC's letter.2 These responses were consistent with the narrative report on the issues of diagnosis and causation, but contained a different date of MMI and, instead of limited "sedentary" duty, as stated in the report, indicated claimant was capable of limited "light-duty" work. The EMA was not deposed.

The parties attended a merit hearing at which time the JCC entered into evidence the EMA's report and the JCC's letter with the handwritten notations. The employer/carrier moved to admit an FCE report into evidence, to which claimant objected on the grounds of authenticity and hearsay. The JCC admitted the FCE report, stating on the record that he did not believe that the "strict" rules of evidence applied to workers' compensation proceedings. Although the FCE report was referred to by several medical witnesses, no foundation for its admissibility was offered.

In the final merit order, the JCC, relying on this court's holding in Fitzgerald v. Osceola County School Board, 974 So.2d 1161 (Fla. 1st DCA 2008), ruled that he was granting no extra weight to the EMA's opinions because the opinions, as expressed in the handwritten correspondence and the narrative report, were inconsistent on "two critical issues of fact": the date of MMI and the degree of the permanent work restrictions. The JCC concluded that, because the EMA failed to render definitive opinions on these two issues, none of the EMA's opinions were afforded the presumption of correctness as provided in section 440.13(9)(c), Florida Statutes (2004). Further, because the JCC found the remainder of the medical evidence equivocal and unreliable, he found that claimant failed to meet her burden in proving the diagnosis as to her lower back injury and its occupational causation. Based on these findings, the JCC denied PTD benefits. In making his findings, and analyzing the evidence, the JCC relied on statements contained in the unauthenticated FCE report. This appeal followed.

Rejection of the EMA's Opinions

If there is a disagreement in the opinions of health care providers, the legislature has mandated that the JCC shall appoint an EMA. See § 440.13(9)(c), Fla. Stat. (2004). Further, the report or testimony of the EMA shall be admitted into evidence, see section 440.25(4)(e), Florida Statutes (2004), and the opinion of the EMA is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the JCC. See § 440.13(9)(c), Fla. Stat. (2004); see also Mobile Med. Indus. v. Quinn, 985 So.2d 33, 36 (Fla. 1st DCA 2008) (stating an EMA's opinion is presumptively correct unless JCC finds and articulates clear and convincing evidence to the contrary). We have explained that the EMA's opinion has "nearly conclusive effect." Pierre v. Handi Van, Inc., 717 So.2d 1115, 1117 (Fla. 1st DCA 1998)

Here, the JCC, relying on this court's opinion in Fitzgerald, 974 So.2d at 1163-64, disregarded all of the EMA's opinions because, in the view of the JCC, the EMA was inconsistent and thus, not "definitive" in his opinions regarding the date of MMI and claimant's precise permanent work restrictions. Significantly, 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 as to claimant's lumbar diagnoses, and the major contributing cause of that condition—both vital issues upon which the EMA's opinion was sought. To the contrary, the JCC found the evidence opposing these opinions unclear and unreliable.

The JCC's reliance on Fitzgerald to support an alternate and non-statutory means by which the EMA's opinion could be avoided is misplaced. In Fitzgerald, the EMA could not, and did not, give a definitive opinion on the disputed issue of major contributing cause. See Fitzgerald, 974 So.2d at 1162-63. Thus, in Fitzgerald, where the EMA gave no opinion on the central issue in dispute, this court held that the black-letter rules (affording the presumption of correctness in the absence of clear and convincing evidence to the contrary) did not apply, and the EMA's opinion could be used (without the presumption of correctness) to assist the JCC in making the ultimate finding of fact. See id. at 1164. Nothing in Fitzgerald, or, more importantly, the statute, allows a JCC to disregard the presumed correctness of an EMA's unequivocal opinions relative to issues upon which the EMA's assistance was sought, without the JCC first making a finding as to the existence of clear and convincing evidence which contradicts the presumed correctness of the opinion. See § 440.13(9)(c), Fla. Stat. (2004). Although this court might envision circumstances where inconsistencies in an EMA's report or the absence of a proper foundation supporting the EMA's...

To continue reading

Request your trial
9 cases
  • HAGANS v. KUBOTA
    • United States
    • Court of Appeal of Florida (US)
    • September 16, 2010
    ......Amos v. Gartner, Inc., 17 So.3d 829, 833 (Fla. 1st DCA 2009).        As this court has ......
  • Arnau v. Stores
    • United States
    • Court of Appeal of Florida (US)
    • February 5, 2013
    ...and convincing evidence to the contrary). We have explained that the EMA's opinion has “nearly conclusive effect.” Amos v. Gartner, Inc., 17 So.3d 829, 831–32 (Fla. 1st DCA 2009) (citing Pierre v. Handi Van, Inc., 717 So.2d 1115, 1117 (Fla. 1st DCA 1998)). When the JCC rejects the opinion o......
  • Olvera v. Hernandez Constr. of SW Fla. Inc.
    • United States
    • Court of Appeal of Florida (US)
    • November 15, 2019
    ...EMA opinion without first making a finding of clear and convincing evidence contradicting the presumed correctness. See Amos v. Gartner , 17 So. 3d 829, 832 (Fla. 1st DCA 2009).III To the extent this issue turns on a resolution of the facts, our standard of review is CSE; to the extent it i......
  • Vaughan v. Broward Gen. Med. Ctr., CASE NO. 1D12-0491
    • United States
    • Court of Appeal of Florida (US)
    • December 19, 2012
    ...provision in the workers' compensation law excepts workers' compensation hearings from the rules of evidence. Amos v. Gartner, Inc., 17 So. 3d 829, 833 (Fla. 1st DCA 2009) (citing Martin Marietta Corp. v. Roop, 566 So. 2d 40, 42 (Fla. 1st DCA 1990)). Authentication of evidence is required a......
  • Request a trial to view additional results
1 books & journal articles
  • Documentary evidence
    • United States
    • James Publishing Practical Law Books Florida Family Law Trial Notebook
    • April 30, 2022
    ...objections. There was no authentication from any source that the report was in fact what it purported to be. Amos v. Gartner, Inc. , 17 So.3d 829 (Fla. 1st DCA 2009). 3.5 AFFIDAVITS Not evidence. An affidavit is not a proper form of evidence on disputed factual issues. An affidavit may not ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT