U.S. AGRI-CHEMICALS CORP. AND AIG CLAIM SERVICES, INC., APPELLANTS,
v.
LARRY CAMACHO, APPELLEE
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In this workers' compensation appeal, the Florida First District Court of Appeal affirmed a judge of compensation claims' determination that an employee's ruptured congenital arterial venous malformation was job-related and compensable. The court found that while the judge erred in admitting inadmissible medical evidence, the error was harmless because the decision was supported by competent evidence from an authorized independent medical examiner.
The judge erred in admitting the deposition and records of Dr. van Loveren, as he did not fall within the categories of authorized medical witnesses under Florida law. However, the error was harmless because the judge stated he would have reached the same result without that evidence, and the decision was supported by competent substantial evidence from the claimant's independent medical examiner. The employer failed to preserve the issue regarding appointment of an expert medical advisor by not requesting one during the proceedings.
[1] A judge of compensation claims errs in admitting the opinion testimony of a physician who does not fall into the categories of a medical advisor appointed by the judge, a…
[2] An error in admitting inadmissible medical evidence is harmless when the judge states that the same result would have been reached without the evidence and that result is…
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Join FLexlaw to unlock all legal intelligence“[n]o medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims”
Establishes the strict statutory requirement limiting which medical witnesses may testify in workers' compensation proceedings
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAn employee (Camacho) suffered a rupture of a congenital arterial venous malformation. The judge of compensation claims determined the rupture was job…
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WEBSTER, J.
In this workers’ compensation case, the employer and servicing agent seek review of a final order determining that the rupture of claimant’s congenital arterial venous malformation was job-related and, therefore, compensable, and awarding benefits. We affirm as to all issues raised, writing only to address briefly two matters.
The employer and servicing agent contend that the judge of compensation claims erred when he admitted, over a timely objection, the deposition and records of Dr. van Loveren, a neurosurgeon who repaired claimant’s rupture. Because Dr. van Loveren was not an authorized treating provider, an independent medical examiner or an expert medical advisor, we agree that the judge should have sustained the timely objection and not admitted the deposition and records. See § 440.13(5)(e), Fla. Stat. (2005) (“[n]o medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims”); Chudnof-James v. Racetrac Petroleum, Inc., 827 So. 2d 369, 370-71 (Fla. 1st DCA 2002) (“[t]he law is clear that a JCC errs in admitting the opinion testimony of a physician who does not fall into one of the [] categories” listed in section 440.13(5)(e)).
However, because the judge stated in his order that he would have reached the same result even without the deposition and records of Dr. van Lov-eren and that result is supported by competent substantial evidence in the form of the testimony of claimant’s independent medical examiner, we conclude that the error is harmless.
The employer and servicing agent also complain that, because a disagreement ex isted between the two independent medical examiners regarding causation, the judge was obliged to appoint an expert medical advisor.
However, the employer and servicing agent never requested that the judge appoint an expert medical advisor.
Accordingly, we conclude that they have failed to preserve this issue, and may not raise it for the first time on appeal. See Palm Springs Gen. Hosp. v. Cabrera, 698 So. 2d 1352, 1355 n. 3 (Fla. 1st DCA 1997) (indicating that, while the judge has an independent duty to appoint an expert medical advisor when the evidence calls for it, failure to do so does not constitute fundamental error, and may not be raised for the first time on appeal). Cf. Walsdorf Sheet Metal Works, Inc. v. Gonzalez, 719 So. 2d 355, 357 (Fla. 1st DCA 1998) (concluding that a party may not complain about the failure to appoint an expert medical advisor when a request for appointment is not made “with reasonable timeliness”).
AFFIRMED.
BENTON and POLSTON, JJ., concur.
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Witham v. Sheehan Pipeline Constr. Co. & Zurich Am. Ins. Co., 45 So. 3d 105 (Fla. 1st DCA 2010)…the admissible evidence. From the order, it cannot be determined whether the JCC would have found Dr. Ross’s testimony alone constituted clear and convincing evidence sufficient to rebut the opinion of the EMA. Cf. U.S. Agri-Chem. Corp. v. Camacho, 975 So. 2d 1219 (Fla. 1st DCA 2008) (holding that JCC’s error in accepting expert testimony was harmless because JCC specifically stated he would have reached the same result without the inadmissible expert opinion); Oriente Express Inn v. Rodriguez, 406 So. 2d 55…
Authorities Cited
- Palm Springs Gen. Hosp. & Fla. Retail Fed'n SIF v. Cabrera, 698 So. 2d 1352 (Fla. 1st DCA 1997)
- Walsdorf Sheet Metal Works, Inc. v. Gonzalez, 719 So. 2d 355 (Fla. 1st DCA 1998)
- Davis v. North Florida Surgical Pavilion and Philip Parr, M.D., 827 So. 2d 369 (Fla. 1st DCA 2002)
- Chudnof-James v. Racetrac Petroleum, Inc., 827 So. 2d 369 (Fla. 1st DCA 2002)