King v. Auto Supply of Jupiter, Inc., 1D04-5232.

• Decision Date: 05 January 2006
• Docket Number: No. 1D04-5232.,1D04-5232.
• Citation: 917 So.2d 1015
• Parties: Amber KING, Appellant, v. AUTO SUPPLY OF JUPITER, INC., and Associated Industries Insurance Company, Appellees.
• Court: Florida Supreme Court

917 So.2d 1015

Amber KING, Appellant, v. AUTO SUPPLY OF JUPITER, INC., and Associated Industries Insurance Company, Appellees.

No. 1D04-5232.

District Court of Appeal of Florida, First District.

January 5, 2006.

COPYRIGHT MATERIAL OMITTED

Kevin G. Bennett of Howard S. Grossman, P.A., Boca Raton, for Appellant.

Mary Ann Stiles and Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Tampa and Atlanta, Ga., for Appellees.

ERVIN, J.

Amber King, claimant below in this workers' compensation appeal, challenges the judge of compensation claims' (JCC) denial of her claims for attendant care, modifications to her house made necessary by her disabling condition, and a determination that her left vocal cord paralysis was compensable. Because we agree that the JCC did not abuse her discretion in admitting into evidence the opinion testimony of claimant's treating physician, Dr. Jeffrey Farber, which opinion was that the requests for attendant care and related benefits were not medically necessary, we conclude the denial is supported by competent, substantial evidence. We further conclude that claimant did not preserve for review the issue relating to the compensability of claimant's vocal cord paralysis. As a consequence, we affirm all of the contested denials.

With regard to the JCC's reliance on Dr. Farber's opinion testimony that claimant had no need for attendant care and similar benefits, claimant argues that the JCC's admission of such evidence was a clear abuse of discretion in that the facts or data that Dr. Farber relied on in reaching his opinion were not the facts or data that experts in his field reasonably rely on. Claimant urges that this is so because the JCC had previously excluded the evidence supporting the physician's opinion, namely, a surveillance videotape and a typewritten surveillance report. Although this is a correct statement of the facts, it should be noted that the JCC excluded the evidence solely because of discovery violations committed by the employer/carrier (E/C), not because the evidence was explicitly deemed unreliable or untrustworthy.

Before expressing an opinion that claimant had no need for attendant care, Dr. Farber previously had recommended six to seven hours of daily care. The edited surveillance videotape and report displayed to him during his deposition,¹ which led him to recant, had never been produced or formally listed on any pre-trial stipulation. The day following Dr. Farber's deposition, claimant moved to strike all surveillance videotapes and reports, based upon both purported discovery violations and the lack of any foundation for their admission into evidence as an exception to the hearsay rule under the business records exception. See § 90.803(6), Fla. Stat.

The JCC considered the motion the first day of the merits hearing, where counsel for claimant argued that the surveillance report and the edited videotape were inadmissible as business records because the statute requires that business records must be prepared from information received by or from individuals with personal knowledge of their preparation, and because Louis Ferlanti, as records custodian of the surveillance company, lacked the requisite knowledge for their admission since he had neither performed the actual surveillance, nor had he prepared any of the surveilling investigators' handwritten notes, which a transcriptionist other than Ferlanti typed and Ferlanti reviewed. Moreover, Ferlanti did not know whether the information contained on the edited composite videotape matched that on the individual videotapes from which the edited tape was derived. The JCC, without specifically acting on the motion, instructed the E/C's counsel on what she perceived to be the proper means of authenticating the evidence by conducting a post-hearing deposition of the various investigators who actually conducted the surveillance. The JCC commented that she did not believe Ferlanti was the appropriate person to authenticate the tapes or reports. The depositions were, however, never completed because claimant later filed an emergency motion to strike all surveillance evidence based on the E/C's "gross and repeated violations of the rules governing pre-trial practice and procedure." The JCC granted the motion, citing the E/C's continuing breach of its discovery obligations.

Whether the JCC erred in allowing into evidence Dr. Farber's opinion testimony, which was the basis for her order denying the requested attendant care, turns on a proper interpretation of section 90.704, Florida Statutes, and implicates de novo review. This provision authorizes the reception of an expert's opinion, even though the facts or data underpinning the opinion may be inadmissible, if the expert can reasonably rely on those facts or data. To a large extent, the answer to the question of the opinion's admissibility depends on the trustworthiness of the information supporting the opinion. The fact that the JCC barred the admission of the surveillance evidence for the specific reason that its proponent had violated pre-trial rules governing discovery has no effect on its trustworthiness or reliability. If, however, the source of the information could be said to be inherently untrustworthy and not qualify for admission under the business records exception, Dr. Farber's opinion testimony may have been substantially compromised by his reliance on such information. Thus, if it were not shown that the disputed information was kept in the regularly conducted practice of the business activity, as section 90.803(6) requires, it is highly questionable that this is the type of material an expert would reasonably...