E-Z Serve Convenience Stores, Inc. v. Paul, E-Z

• Decision Date: 10 November 1998
• Docket Number: E-Z,No. 97-3953,97-3953
• Citation: 720 So.2d 301
• Parties: 23 Fla. L. Weekly D2513 SERVE CONVENIENCE STORES, INC. and AIG Claims Services, Inc., Appellants, v. Luthene C. PAUL, Appellee.
• Court: Florida District Court of Appeals

Page 301

720 So.2d 301

23 Fla. L. Weekly D2513

E-Z SERVE CONVENIENCE STORES, INC. and AIG Claims Services, Inc., Appellants, v. Luthene C. PAUL, Appellee.

No. 97-3953.

District Court of Appeal of Florida First District.

Nov. 10, 1998.

William J. Cook and Ryan Christopher Rodems of Alpert, Barker & Calcutt, P.A., Tampa, for Appellants.

Dean Burnetti, Lakeland, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellee.

BENTON, Judge.

Luthene C. Paul's employer, E-Z Serve Convenience Stores, Inc. (E-Z), and AIG Claims Services, Inc. (AIG), its workers' compensation insurance carrier, argue for reversal of a compensation order in favor of Ms. Paul. We address only one of the points they raise. Persuaded that the judge of compensation claims erred in receiving testimony over the telephone that had been duly objected to--on grounds that it did not meet the requirements of Florida Rule of Workers' Compensation Procedure 4.075(f)(3)--we reverse the order under review, which expressly relies on the testimony in question, and remand for further proceedings.

Ms. Paul experienced severe back pain lifting a case of Gatorade at work. A Dr. Mozingo attributed Ms. Paul's back problems to a preexisting condition--spinal canal stenosis--and expressed the opinion that the industrial accident was not the major contributing cause of her symptoms.

At Ms. Paul's instance, a Dr. Wall performed an independent medical examination. He testified on deposition to a causal relationship between Ms. Paul's problems and the industrial accident, but he did not testify that the accident was the major contributing cause of Ms. Paul's need for treatment.

Ms. Paul listed Dr. Wall on a supplemental witness list as one of several "persons [who] may be called as witnesses at the trial." When the time came, however, Ms. Paul proposed that Dr. Wall testify by telephone. E-Z and AIG objected, raising the question whether a notary public would be in Dr. Wall's presence to administer the oath.

The Florida Rules of Workers' Compensation Procedure specify that, before telephonic testimony is taken, "the oath shall be administered in the physical presence of the witness, by a notary public or officer authorized to administer oaths." Fla. R. Work. Comp. P. 4.075(f)(3) (1997). Instead, Ms. Paul's counsel, Mr. Burnetti, administered an oath over the telephone. The person on the other end of the line testified that Ms. Paul's industrial accident was the major contributing cause of her back condition and the need for treatment.

One purpose of Florida Rule of Workers' Compensation Procedure 4.075(f)(3) is to ensure the identity of the witness who is testifying. After the oath is administered, the person who administers the oath must file with the judge of compensation claims a certificate attesting to the identity of the person who took the oath. See Fla. R. Work. Comp. P. 4.075(f)(3); see also § 92.50(a), Fla. Stat. (1997) (establishing procedures for making such certificates). Here the judge of compensation claims inquired, as follows:

THE COURT: What arrangement have you made to swear in Dr. Wall[ ]? Do you know him, do you want to swear him in?

MR....