## Facts

- Peggy Amos worked for Gartner, Inc. as a clerical employee.
- Before the workplace accident, Amos had significant low-back history, including three prior back surgeries.
- On April 6, 2005, Amos fell down a flight of stairs at work and injured her neck and back (including aggravation of lumbar problems).
- At the employer/carrier’s request, Amos treated with Dr. Dusseau as an authorized physician.
- Dr. Dusseau later placed Amos at maximum medical improvement (MMI) and, as of July 25, 2007, placed her on a no-work status.
- Amos filed a workers’ compensation claim seeking permanent total disability (PTD) benefits beginning July 25, 2007, and continuing.
- The employer/carrier (Gartner, Inc. and Sentry Insurance) obtained an independent medical examination (IME) from Dr. Glasser.
- Dr. Glasser opined that Amos’s cervical and lumbar conditions and resulting restrictions were not caused in major part by the workplace accident.
- Because the medical opinions conflicted, the Judge of Compensation Claims (JCC) appointed an expert medical adviser (EMA) and directed the parties to provide the EMA with the necessary medical records.
- The EMA issued a narrative report diagnosing lumbar myofascial syndrome and chronic pain syndrome of lumbar and myofascial origin, and concluded the lumbar condition was caused in major part (60%) by the workplace accident.
- The EMA report was admitted into evidence.
- The employer/carrier sought to admit a functional capacity evaluation (FCE) report; Amos objected on authenticity and hearsay grounds.
- The JCC admitted the FCE report over objection, reasoning that the rules of evidence did not apply in workers’ compensation proceedings.
- The JCC rejected the EMA’s opinion due to perceived inconsistencies on material facts, found Amos failed to prove the diagnosis of her back condition and workplace causation, and denied PTD benefits while relying in part on statements in the unauthenticated FCE report.
- Amos appealed to the First District Court of Appeal.

## Issues

1. Whether the JCC used the correct legal standard when rejecting the EMA’s opinion, which is presumed correct unless rebutted by clear and convincing evidence under section 440.13(9)(c), Florida Statutes.
2. Whether the JCC erred by admitting and relying on an unauthenticated FCE report over the claimant’s authenticity and hearsay objections.

## Decision

- The First District Court of Appeal reversed the order denying PTD benefits and remanded for further proceedings.
- The court held the JCC committed reversible error by rejecting the EMA’s opinion using an improper legal standard rather than applying the statutory presumption and requiring clear and convincing evidence to reject the EMA on the medical issues referred to the EMA.
- The court also held the JCC committed reversible error by admitting the FCE report over authenticity and hearsay objections and then relying on it in making key findings.
- Because these errors required reversal, the court did not reach the claimant’s remaining appellate arguments (including issues related to PTD entitlement, penalties, interest, costs, and attorney’s fees).

## Legal Principles

- Under section 440.13(9)(c), Florida Statutes, an EMA’s opinion on referred medical disputes is presumed correct and may be rejected only upon clear and convincing evidence that the opinion is incorrect.
- A JCC may not treat an EMA as merely another competing medical witness when the statute assigns the EMA’s opinion presumptive weight; rejection requires the heightened evidentiary showing set by statute.
- Workers’ compensation proceedings are less formal than civil trials, but a JCC may not admit and rely on unreliable proof over proper objections when the evidence is used to decide essential facts such as diagnosis, causation, and work capacity.
- Documentary evidence offered for the truth of its contents must be properly authenticated and must satisfy the limits on hearsay; an unauthenticated hearsay report is not a proper basis for dispositive findings when timely objections are made.
- When a JCC’s key findings rest in part on improperly admitted evidence, and the appellate court cannot say the error was harmless, reversal and remand are required.

## Conclusion

In *Amos v. Gartner, Inc.*, the First District reversed a denial of PTD benefits because the JCC rejected the EMA’s causation opinion without applying the statutory presumption and clear-and-convincing standard, and because the JCC admitted and relied on an unauthenticated, hearsay FCE report over objection; the case was remanded for further proceedings consistent with those rulings.


Amos v. Gartner, Inc., 17 So. 3d 829 (2009)