ROBERT YOUNG, APPELLANT,
v.
AMERICAN AIRLINES AND SEDGWICK, APPELLEES

Fla. 1st DCA | 2012-10-08
No. 1D11-5861
MARSTILLER, RAY, and SWANSON, JJ., concur.
100 So. 3d 1168 Florida District Court of Appeal, First District (2012) Positive Treatment
Cited by 2 cases

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Synopsis

In this workers' compensation appeal, the court reversed the Judge of Compensation Claims' denial of benefits for a cardiologist evaluation and permanent total disability (PTD), finding that the JCC erred in relying on stale medical records and unauthenticated independent medical examination evidence.


Holding

The court reversed both denials. A recommendation from an authorized physician does not become stale absent a change in the claimant's condition affecting the need for the recommended benefit. Additionally, the Employer/Carrier's independent medical examiner's records were improperly admitted without authentication, requiring exclusion of the vocational expert opinions based thereon, and thus mandating remand for an award of PTD benefits based on the claimant's uncontroverted medical opinions.


Headnotes

[1] A recommendation for a medical evaluation by an authorized physician in a workers' compensation case does not become stale in the absence of a change in the claimant's co…

[2] Medical records from an independent medical examination in a workers' compensation case are not admissible under the business records exception to authentication requirem…

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Key Quotes

“no legal authority indicates a recommendation or referral from an authorized doctor can become stale in the absence of a change in Claimant's condition that would affect the need for the recommended benefit.”

Establishes that stale recommendations do not defeat entitlement to benefits without intervening change in condition

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Facts & Procedural History

Claimant Robert Young sought workers' compensation benefits including a cardiologist evaluation recommended by an authorized physician in 2006 and per…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying benefits, including claims for an evaluation by a cardiologist, and for permanent total disability (PTD) benefits. We reverse both of these rulings, for the reasons set forth herein.

In denying the cardiologist evaluation, the JCC found “[t]he only evidence of the need for an evaluation by a cardiologist comes in a note from an authorized physician in 2006,” and “[tjhere is no current medical evidence” of the need. This reasoning was erroneous because no legal authority indicates a recommendation or referral from an authorized doctor can become stale in the absence of a change in Claimant’s condition that would affect the need for the recommended benefit.

In denying PTD benefits, the JCC accepted the medical opinions of the Employer/Carrier’s (E/C’s) independent medical examiner, Dr. Easterling, that Claimant was not at maximum medical improvement and Claimant’s restriction on lifting — to below-sedentary duty — was only for the right hand, over the medical opinion of Claimant’s medical witness, Dr. Kleinhans, that Claimant was at maximum medical improvement with below-sedentary lifting restrictions not limited to a single hand. The JCC also accepted the opinions of the E/C’s vocational expert, which were based on Dr. Easterling’s opinion.

Accepting Dr. Easterling’s opinion here was error because the E/C never authenticated Dr. Easterling’s medical records. Contrary to the E/C’s argument below and on appeal, the exception to authentication provided by section 440.29(4), Florida Statutes, does not apply to independent medical examinations. Cf. Tutor Time Child Care/Learning Ctrs. v. Patterson, 91 So.3d 264 (Fla. 1st DCA 2012) (explaining purpose of business records exception for medical reports concerning workers’ compensation claims). Because Dr. Easter-ling’s medical records should have been excluded, the vocational expert’s opinions based thereon should also have been excluded. We decline to give the E/C a second chance to authenticate such evidence. See generally Morton’s of Chicago, Inc. v. Lira, 48 So.3d 76, 80 (Fla. 1st DCA 2010) (declining to give party “extra bite of the apple” or “extra inning” to present evidence on remand). Accordingly, we reverse the challenged portions of the order, and remand with instructions to the JCC to enter a final order awarding, not only the benefits unchallenged on appeal, but *1170also the recommended evaluation with a cardiologist, and PTD benefits based on the uncontroverted opinions of Dr. Klein-hans unless the JCC finds the opinions unpersuasive. See White v. Bass Pro Outdoor World, LP, 16 So.3d 992, 993 (Fla. 1st DCA 2009).

REVERSED and REMANDED with instructions.

MARSTILLER, RAY, and SWANSON, JJ., concur.


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Citator

Cited By

  • Young v. Am. Airlines & Sedgwick, 130 So. 3d 272 (Fla. 1st DCA 2013)
    …PER CURIAM. This is the second time this workers’ compensation case has come before this court. In Young v. American Airlines & Sedgwick, 100 So. 3d 1168, 1170 (Fla. 1st DCA 2012), we reversed an order of the Judge of Compensation Claims (JCC), which denied Claimant’s petition for permanent total disability (PTD) benefits, based on our conclusion that the JCC erred in admitting and relying upon an un…

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