FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-3745
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ERNESTO BLANCO,
Appellant,
v.
CREATIVE MANAGEMENT
SERVICES, LLC/ TECHNOLOGY
INSURANCE COMPANY,
Appellees.
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On appeal from an order of the Judge of Compensation Claims.
Walter J. Havers, Judge.
Date of Accident: December 4, 2017.
October 17, 2019
PER CURIAM.
Ernesto Blanco appeals the Judge of Compensation Claims’
order denying his claim for worker’s compensation benefits. The
JCC did not find credible Blanco’s claim that exposure to
construction or cement dust from his job site during his short-term
employment with Creative Management Services caused his
respiratory condition. The JCC also agreed with the expert medical
opinion that Blanco’s seventeen-year history of smoking cigarettes
caused his respiratory condition. Blanco makes several arguments
for reversal. Finding no error, we affirm.
Facts
Blanco smoked cigarettes for seventeen years before he began
work with CMS. Blanco’s accounts of how much he smoked varied.
The number of cigarettes he claimed that he smoked daily ranged
from half a pack per day up to three packs per day. In mid-
November 2017, his primary care doctor noted that Blanco was
still smoking heavily and that he reported more frequent use of an
inhaler. The doctor also recorded in his notes of Blanco’s visit a
diagnosis of probable chronic obstructive pulmonary disease.
Weeks after the November visit to his doctor, Blanco started
work with CMS to set up booths for an art show. The job required
Blanco to move furniture, build walls and booths, paint, and hang
signs. During the eleven days he worked for CMS, Blanco claimed
that he saw dust and debris in the air at the job site. According to
Blanco, other workers were milling or grinding concrete at the
loading dock. Blanco stated that a crew would periodically sweep
and hose down the area, but it did not control the dust. He claimed
that he had trouble breathing and was using his inhaler more often
while at the job site. On the morning of December 5th, Blanco woke
up and had trouble breathing. His wife called 911 and paramedics
transported Blanco to the emergency room in respiratory distress.
Doctors diagnosed him with advanced COPD and an acute
exacerbation of unspecified asthma. Blanco made a claim for
worker’s compensation benefits, alleging that the exposure to dust
and debris at the CMS job site caused him to suffer from COPD.
The E/C denied compensability on grounds that the alleged on-the-
job exposure to dust was not the major contributing cause of
Blanco’s respiratory condition.
Analysis
Blanco raises five arguments challenging the JCC’s order
denying benefits. We affirm on all and write only to address his
arguments about the admission of expert testimony and the
evidence supporting the JCC’s order denying benefits.
Blanco contends that no competent, substantial evidence
supports the JCC’s decision to deny benefits. We disagree. Blanco
had the burden to prove his claim. We review the JCC's findings of
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fact to determine whether competent, substantial evidence
supports the JCC's findings. See, e.g., Mylock v. Champion Int'l,
906 So.2d 363 (Fla. 1st DCA 2005). A decision in favor of the party
without the burden of proof need not be supported by competent,
substantial evidence. See Fitzgerald v. Osceola Cty. Sch. Bd.,
974
So. 2d 1161, 1164 (Fla. 1st DCA 2008); Mitchell v. XO Commc'ns,
966 So.2d 489, 490 (Fla. 1st DCA 2007). As this court observed in
Mitchell, “a JCC may reject in whole or in part even
uncontroverted testimony the JCC disbelieves.”
Id. (citing
following a no contest plea).
Here, the JCC concluded that Blanco did not meet his burden
to show that exposure to dust and debris at the CMS job site was
the major contributing cause of his respiratory condition. The JCC
rejected Blanco’s testimony about the alleged cause of his
condition. The JCC had a chance to observe Blanco’s demeanor and
found that he lacked credibility. He also found that Blanco was an
unreliable witness based on the substantially incomplete and
contradictory medical histories he provided to his doctors. As a
result, the JCC concluded that Blanco failed to meet his burden to
show that he suffered an accident from exposure “in the course and
scope of his employment.” The JCC was in the best position “to
evaluate and weigh the testimony and evidence based on its
observation of the bearing, demeanor, and credibility of the
witnesses.” Shaw v. Shaw,
334 So. 2d 13, 16 (Fla. 1976). For this
reason, we find no abuse of discretion by the JCC in his finding
that Blanco failed to meet his burden of proof.
Even so, Blanco challenges the JCC’s admission of testimony
in support of the E/C. Blanco argues that the JCC should have
excluded the medical opinion offered by the E/C’s independent
medical examiner, Dr. McCluskey. He opined that Blanco’s
seventeen-year smoking habit was the major contributing cause of
his need for treatment of his respiratory condition in December
2017—rather than his alleged exposure to debris during the eleven
days he worked for CMS. The JCC found the expert’s testimony
persuasive. But Blanco claims that Dr. McCluskey was not
qualified to render the opinion because he is not a board-certified
internist or pulmonologist.
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We review the JCC’s decision for an abuse of discretion. See
King v. Auto Supply of Jupiter, Inc.,
917 So. 2d 1015, 1017 (Fla. 1st
DCA 2006). And we observe “that the determination of a witness’s
qualifications to express an expert opinion is peculiarly within the
discretion of the trial judge, whose decision will not be reversed
absent a clear showing of error.” Anderson v. State,
863 So. 2d 169,
179 (Fla. 2003) (citations omitted).
Based on our review of the record, we find no abuse of
discretion here. Dr. McCluskey testified that he is board-certified
in occupational medicine and has a PhD in toxicology. He also
testified about his extensive experience in determining the cause
of exposure injuries like Blanco’s alleged injury. But despite Dr.
McCluskey’s medical training and expertise, Blanco argues that
Dr. McCluskey could not serve as an expert because he is not
“board certified” in internal medicine or pulmonology. Yet section
440.13(5)(a), which provides for the selection of an IME, does not
limit that selection to a board-certified physician.
Still, Blanco argues that Dr. McCluskey was not qualified to
render an opinion on the cause of Blanco’s respiratory condition
because he is not a pulmonologist. * Blanco’s argument presumes
that only a pulmonologist—a specialist in the treatment of
respiratory disease—was qualified to testify on the disputed issue
of causation of Blanco’s condition. But Blanco ignores that Dr.
McCluskey is a board-certified occupational medicine specialist
with extensive experience in exposure cases leading to pulmonary
problems. In Chavez v. State,
12 So. 3d 199, 205 (Fla. 2009), the
Florida Supreme Court explained that, under the rules of evidence,
“[a] witness may be qualified as an expert through specialized
knowledge, training, or education, which is not limited to
academic, scientific, or technical knowledge.” Even though Dr.
McCluskey is not board certified as a pulmonologist, his board
certification in occupational medicine, his extensive training, and
* Blanco did not present any argument or evidence to show
that Dr. McCluskey rendered an opinion “outside his . . . area of
expertise, as demonstrated by licensure and applicable practice
parameters” as prohibited under the specific IME provision in
Chapter 440. See § 440.13(5)(a), Fla. Stat. (2017).
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experience in exposure cases establish his qualifications to opine
on the disputed issue of causation.
But even if Dr. McCluskey were properly qualified as an
expert, Blanco argues that the JCC had to strike Dr. McCluskey’s
IME report as untrustworthy per se. In denying Blanco’s motion to
strike the IME report, the JCC relied on Heckford v. Fla. Dep’t of
Corrections,
699 So. 2d 247 (Fla. 1st DCA 1997) (finding IME
report admissible under the business records exception). In
arguing for reversal, Blanco relies on McElroy v. Perry,
753 So. 2d
121, 126 (Fla. 2d DCA 2000). There, the court held that the IME
report at issue—prepared solely for litigation—fell in the suspect
category of trustworthiness as identified by Professor Ehrhardt in
Florida Evidence § 803.6 at 695 (1999 ed.). McElroy,
753 So. 2d at
125. Although one of the IME physicians in McElroy testified about
his opinions, the court found that it did not follow that “his written
report, which is hearsay, becomes admissible.”
Id. at 126.
Apparently overlooking the Heckford opinion cited by the
JCC, the McElroy court noted that its review of the case law
revealed no Florida cases addressing the IME report as a business
record. The court held that IME reports are not admissible under
the business records exception because they lack the
trustworthiness that business records are presumed to have.
Blanco argues that the JCC should have excluded Dr. McCluskey’s
report as untrustworthy because the E/C obtained the report with
the specific intent to defend against Blanco’s claims. We disagree.
The holding in McElroy does not apply in workers’
compensation cases for at least three reasons. First, Chapter 440
specifically provides for the selection of IME doctors to resolve
disputes. See § 440.13(5)(a), Fla. Stat. (2017). Second, the
admissibility of medical opinions in workers’ compensation
disputes is limited to certain providers, which includes IME
doctors. See § 440.13(5)(e), Fla. Stat. (2017). Third, the McElroy
court expressed concern about the effect of an IME report, which
may be cumulative, on a jury; in workers’ compensation cases there
is no jury and the JCC, the factfinder, is also the one who
determines the admissibility or trustworthiness of the evidence.
Thus, the JCC did not err by accepting Dr. McCluskey’s opinion on
causation.
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AFFIRMED.
B.L. THOMAS, ROWE, and M.K. Thomas, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Divya Khullar of Khullar, P.A., Tamarac, for Appellant.
Rayford H. Taylor of Hall Booth Smith, P.C., Atlanta, for
Appellees.
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