09-5914 CHARLOTTE COUNTY PUBLIC SCHOOLS and EMPLOYERS MUTUAL, INC., v. KARYN E. GARY

State: Florida

Court: Florida First District Court

Docket No: 09-5914

Case Date: 07/30/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA CHARLOTTE COUNTY PUBLIC SCHOOLS and EMPLOYERS MUTUAL, INC., Appellants, v. KARYN E. GARY, Appellee. _____________________________/ Opinion filed July 30, 2010. An appeal from an order of the Judge of Compensation Claims. Kathy A. Sturgis, Judge. Date of Accident: November 14, 2007. Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Daniel J. DeMay of Pallo, Marks, Hernandez, Gechijian & DeMay, P.A., Sarasota, for Appellants. Mark L. Zientz, Miami, for Appellee. CASE NO. 1D09-5914 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PER CURIAM. In this workers' compensation appeal, the employer/carrier (E/C) seeks reversal of an order of the Judge of Compensation Claims (JCC) which denies its misrepresentation defense, and awards hearing aids and an orthopedic evaluation.

The E/C raises four issues. We reverse only as to the award of hearing aids and the award of attorney's fees pertaining thereto. We affirm the remaining points on appeal without discussion. Here, Claimant's authorized treating otolaryngologist initially recommended hearing aids, but testified she changed her opinion as to the cause of Claimant's hearing loss based on self-described symptoms that Claimant had previously reported to her allergist. The JCC rejected the treating physician's opinion

regarding the pre-existing nature of Claimant's hearing loss because it was based on assumptions which were found to be faulty and not borne out by medical evidence. The JCC has the prerogative to reject the treating physician's opinion regarding the preexisting nature of Claimant's hearing loss. See, e.g., White v. Bass Pro Outdoor World, LP, 16 So. 3d 992, 993-94 (Fla. 1st DCA 2009) (stating a JCC has the prerogative to reject even uncontroverted testimony which is unpersuasive). Nevertheless, the JCC's mere rejection of this testimony did not, ipso facto, establish the requisite causal relationship between Claimant's accident and her hearing loss. Rather, Claimant had to introduce medical evidence proving that, within a reasonable degree of medical certainty, her hearing loss was causally related to her compensable accident. See

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