The Florida First District Court of Appeal decided Blanco v. Creative Mgt. Svcs., 281 So.3d 598 (Fla. 1st DCA 2019). It is an interesting discussion of the process for admitting evidence in a proceeding, but also provides reminders of the deference that appellate courts afford the trier of fact in making credibility determinations and the burden of proof. There are those who find the Court's conclusions in Blanco difficult considering other decisions on the topic of independent medical examination reports. The subject bears discussion, in the context of distinguishing hearsay objections and authentication objections. For more on hearsay, see Better Understanding the Hearsay Rule (March 2016).
In Blanco, the injured worker did not prevail in his claim for workplace exposure. He appealed, complaining that an independent medical examiner (IME) report was admitted as evidence at trial. The Florida Occupational Disease Burden (December 2019) was also a recent post topic that is relevant in that regard. In this instance, the objection to the IME report was two-fold. First, the injured worker contended the doctor could not express opinions regarding lung injury because he was not a board-certified pulmonologist or internal medicine specialist. Second, he contended that the IME report was hearsay.
The Court did not accept the credential argument. It explained that expertise may be founded upon board certification or education, but it is not necessarily limited to "academic, scientific, or technical knowledge.” The Court explained that the doctor's certification in occupational medicine, "extensive experience in exposure cases," and extensive training rendered him qualified to express opinions on the pertinent questions.
The injured worker relied upon a published decision of the Florida Second District Court of Appeal. McElroy v. Perry, 753 So. 2d 121, 126 (Fla. 2d DCA 2000). The Court in McElroy concluded that such an IME report "prepared solely for litigation" lacked "trustworthiness," and was appropriately excluded from evidence. Notably, the Second District noted in its decision that it had found "no Florida cases expressly addressing the admissibility of an IME report as a business record," and the First District in Blanco noted that Court had "apparently overlooked" the 1997 decision relied upon by the JCC in Blanco: Heckford v. Department of Corrections, 699 So. 2d 247 (Fla. 1st DCA 1997). The Second DCA failure to acknowledge that precedent is troubling.
Therefore, as to the business record exception for hearsay, the Florida First District has concluded that IME reports are admissible. That determination is controlling in workers' compensation proceedings throughout Florida and may be so due to specific workers' compensation statutes. The Court specifically noted the IME process, and selection of IME providers, are statutorily created in workers' compensation. The Court added that the concern of the McElroy Court, regarding an effect of the report on a jury, is not of concern in workers' compensation. Whether such reports would be admissible outside of workers' compensation or outside of the geographic area of the First District, without further foundation, is a question worthy of asking by those involved in such cases.
The Court also reminded that a trial judge is best situated to "observe . . . demeanor," and make credibility determinations. Thus, the Court declined to undertake re-making that decision.
Practitioners should also consider that in 2012, the First District Court decided Young v. American Airlines, 100 So. 3d 1168 (Fla. 1st DCA 2012). There, the Court concluded that admitting an IME report was error. The Court held that the reliance upon that document by the judge was improper, and reversed the judge's decision that was based upon it. At first glance, some will see a conflict between these two decisions.
The issue in Young was different, however. In Young, the objection was not that the IME report was hearsay, but that it was not authenticated. The Court noted that authentication is not necessary for records that are described in section 440.29(4), Florida Statutes:
"(4) All medical reports of authorized treating health care providers relating to the claimant and subject accident shall be received into evidence by the judge of compensation claims upon proper motion."
The Court explained that this provision does not apply to IME reports, as the language specifically says "authorized treating health care providers." Therefore, the admission of the IME report was reversed by the Court in Young on authentication grounds. Authentication refers to the "genuineness vel non (or not) of a document." That is, is the IME report actually the IME report. This is something often stipulated by parties to a case but may be an objection raised in other cases.
This illustrates a challenge in any litigation, that there may be various objections raised (or at least potential) regarding a document. A party might object based on hearsay, authentication, and even "best evidence" (the requirement for originals rather than copies). A responsive argument regarding hearsay (it is a business record, or is not hearsay) would not answer the other two objections. Similarly, a stipulation to the use of copies would answer the "best evidence," but not the authentication or hearsay. When compound objections are made, then compound responses are required.
Thus, the answer to "Are IME reports admissible in evidence" is likely to be "It depends." It depends on what court you are in, and what the specific evidentiary objection is that has been raised. Admittedly not the most forthcoming or enlightening answer. But, to answer the question fully, one would have to know if the other parties object to the document and if so what the basis is for the objection(s). Lawyers are responsible for the details, and often, that is where the devil lies.
