Bryant v. Home Depot, 1D02-1231.

• Decision Date: 15 May 2003
• Docket Number: No. 1D02-1231.,1D02-1231.
• Citation: 845 So.2d 292
• Parties: James BRYANT, Appellant, v. HOME DEPOT and Sedgewick Claims Management, Appellees.
• Court: Florida District Court of Appeals

845 So.2d 292

James BRYANT, Appellant, v. HOME DEPOT and Sedgewick Claims Management, Appellees.

No. 1D02-1231.

District Court of Appeal of Florida, First District.

May 15, 2003.

Jeffrey S. Breslow of Druckman, Breslow & Fee, P.A., Miami, for Appellant.

Kimberly A. Hill, Conroy, Simberg, Ganon, Krevans & Abel, P.A., for Appellees.

KAHN, J.

In this workers' compensation case, appellant James Bryant challenges a ruling of the judge of compensation claims (JCC) excluding the deposition testimony of an unauthorized treating physician, and the order of the JCC denying compensation. Specifically, Bryant raises three points: (1) the JCC erred in excluding the deposition testimony of Dr. Bollo under Clairson International v. Rose, 718 So.2d 210 (Fla. 1st DCA 1998); (2) the JCC erred in failing to find that the major contributing cause of his Achilles tendinitis was work-related; and (3) the JCC erred in denying all benefits in light of an improper denial of compensability. We affirm the second and third issues without further discussion. On the first issue, we likewise affirm for the reasons stated below.

Bryant worked for Home Depot, the Employer/Carrier (E/C), from December 1996 through June 1, 1998. On April 19, 2000, Bryant filed a petition for benefits claiming that repetitive trauma to his left foot caused bilateral Achilles tendinitis. Bryant chose his then-current treating physician, Dr. Jimmerson, as his independent medical examiner (IME). Bryant also listed Dr. Bollo, an unauthorized treating podiatrist, as a witness. Dr. Bollo treated Bryant from May 18, 1998, through July 1999. On October 29, 2001, the E/C scheduled and took the deposition of Dr. Bollo for discovery purposes. At the final hearing, on January 15, 2002, Bryant attempted to introduce the deposition testimony of Dr. Bollo, over objection, arguing the E/C waived their objection by failing to object at the deposition or when Dr. Bollo was listed as a witness. The JCC excluded Dr. Bollo's testimony pursuant to section 440.13(5)(e), Florida Statutes, because he was not an appointed medical advisor, designated IME, or authorized treating physician, and the deposition was taken for discovery purposes.

In Clairson, this court held that an E/C who failed to object to the competence of an unauthorized treating physician during the deposition could not later challenge the admissibility of the deposition on grounds that the physician was not an appointed medical advisor, designated IME, or authorized treating physician. See 718 So.2d at 213-14; see also § 440.13(5)(e), Fla. Stat. (2002). We emphasized that, had the objection been made during the deposition, it would have given the claimant, who at time of deposition had not designated an IME, an opportunity to designate the...