Thursday, December 20, 2012

Failure in Evidence Least of Employer's Issues

A recent Florida 1st District Court of Appeals (1st DCA) case highlights what is a common problem with employers attempting to mount a defense in the denial of a claim - failure to have their proverbial evidentiary act together.

For some reason, perhaps because of the lax administrative atmosphere of workers' compensation hearings, employers/carriers/defendants just don't take the rules of evidence seriously, and then when the case goes against them there is a complaint that the system is rigged in favor of the injured worker.

The following case illustrates what I believe is a more common reason for cases being decided against the employer - complete failure to obtain and properly authenticate ADMISSIBLE evidence. defines admissible evidence in part as, "evidence which the trial judge finds is useful in helping the trier of fact (a jury if there is a jury, otherwise the judge), and which cannot be objected to on the basis that it is irrelevant, immaterial, or violates the rules against hearsay and other objections."

The 1st DCA in Vaughan v. Broward General Medical Center et al., No. 1S12-0491, basically said that the employer's failure to authenticate a physician's note that was addressed "to whom it may concern" was a failure in evidence and thus this note, which was decisive in the trial judge's ruling on the case, was inadmissible and could not be relied upon as evidence.

Beverly Vaughan was attacked by a patient while working as a patient observer for the Broward General Medical Center in June 2004. She suffered a right shoulder sprain, multiple forehead abrasions and a cervical strain.

Vaughan's authorized treating orthopedist, Dr. Paul Meli, recommended physical therapy to address her cervical strain in January 2008. After a few months of treatment, Meli placed Vaughan at maximum medical improvement in December 2008.

Vaughan returned to see Meli the following November, complaining of pain in her right shoulder and cervical spine. Meli again recommended physical therapy. He reported that Vaughan's industrial injury was the major contributing cause of her pain complaints and her need for treatment.

I interrupt this narrative for an important observation - the date of injury was 2004, soft tissue injuries. Vaughan is still complaining about those same injuries 5 years later. This in itself doesn't make any anatomical or medical sense. The employer/carrier/defense should not have been in this position in the first place...

Back to the story: Two weeks later, in December 2009, Meli ostensibly changed his mind and wrote a letter addressed to "Whom it May Concern" indicating that Vaughan's symptoms were not related to her industrial accident.

Vaughan filed a petition for benefits in November 2010, seeking authorization of continued physical therapy and other benefits, but the medical center denied her request based on Meli's statements in the letter he purportedly wrote in December 2009.

A hearing on Vaughan's claim was set before Judge Hogan, and the hearing date was continued twice. On the date of the hearing, an attorney for the employer requested a third continuance, since the employer had not yet been able to depose Meli and clarify his medical opinion.

Vaughan did not oppose the employer's request, but since the defense counsel said his client would not be prejudiced if the hearing were to proceed, Hogan denied the continuance.

At the hearing, the employer sought to introduce the December 2009 letter supposedly written by Meli, but Vaughan argued the document was inadmissible as unauthenticated and as hearsay. Vaughan further contended that the correspondence did not qualify as a "medical report" under Florida Statutes Section 440.29(4).

Vaughan's evidentiary objections were overruled. Hogan ruled against Vaughan and Vaughan appealed.

The 1st DCA said the first mistake was that Hogan never ruled on whether the employer had complied with the requirements of Section 440.29(4) for admitting the letter as a medical report, or even if the document could qualify as a medical report. She also did not issue findings on whether the letter was authenticated, non-hearsay or covered by an exception to the hearsay rule.

To the extent that Hogan made an implicit finding that Broward followed the procedure set forth in Section 440.29(4) to render the letter admissible, the court said this finding was not supported by the record since the employer's attorney conceded that the employer had not served the letter upon Vaughan's counsel at least 30 days before the hearing, as required by the statute.

Even if the letter were admissible as a medical record under Section 440.29(4), the court added, authentication of it was required prior to its actual admission into evidence.

Since the reliability of the letter was never established, the court said Hogan erred in admitting and relying on statements it contained to deny Vaughan's claim.

Peeling back the skin of the onion a bit, what the 1st DCA is really telling the employer is that there is no real excuse for failing to authenticate the doctor's letter. The letter was dated December 2009. The first hearing was over a year later and continued twice. Surely the defendant could have obtained the doctor's deposition or even a simple declaration under penalty of perjury as to the authenticity of the note.

Nope - workers' compensation in the legal world is a volume business. Sometimes details get missed because the next case has to be dealt with. That's not an excuse, that's just fact. The employer/carrier/defendant simply failed to perform a very routine, easy, task - getting the document in question authenticated and then qualified as a piece of evidence.

Yes, the facts of this case seem pretty obvious: physical therapy for over 5 years for soft tissue injuries? Are you kidding me? I know you're shaking your head, thinking that this court is off base and that there is no semblance of reason in the law.

Sorry employer/carrier/defendant - common sense has no place when there are explicit rules on how things get done; rules that aren't all that difficult to comply with, and rules that, if the shoe were on the other foot, would just as easily benefit the employer/carrier/defendant just as much as the injured worker.

Employers, next time you have a complaint about a ruling coming out of the courts, look first at yourselves - did you proffer GOOD, ADMISSIBLE evidence? It's not that hard. 

Evidentiary rules protect the sanctity of jurisprudence. The court in Vaughn had no alternative in its ruling regardless of whether or not common sense dictates otherwise.

And as I mentioned earlier - how is it that Vaughn was still getting physical therapy 5 years after date of injury? Sorry - claims management was non-existent. If I were the risk manager for the employer someone would be out of a job right now. This case exudes incompetence throughout its history.

By the way, the 1st DCA seems to be able to warp time. The opinion in Vaughn is dated 12/19/2012. Page 4 of the opinion references "the merits hearing held on December 28, 2012."

1 comment:

  1. A broad and thorough analysis. The point which needs more stress, though, is that judges are stuck with what the parties bring to the table. Often, the "best evidence" is not presented and the adjudicator must nonetheless make the "best" decision on the incomplete and or disorganized and or uselessly repetitious evidence that is presented. Lawyers need to think critically, plan carefully, and focus the adjudicator on the critical elements.