Holiday Inn v. Re

643 So. 2d 13, 1994 Fla. App. LEXIS 8656, 1994 WL 478670
CourtDistrict Court of Appeal of Florida
DecidedSeptember 7, 1994
DocketNo. 93-333
StatusPublished
Cited by1 cases

This text of 643 So. 2d 13 (Holiday Inn v. Re) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holiday Inn v. Re, 643 So. 2d 13, 1994 Fla. App. LEXIS 8656, 1994 WL 478670 (Fla. Ct. App. 1994).

Opinion

SMITH, Senior Judge.

The employer and carrier (E/C) seek reversal of a worker’s compensation order granting temporary partial disability and other benefits on the ground that the judge of compensation claims erred in excluding a surveillance videotape and certain expert testimony based on the surveillance tape. We affirm.

The claimant suffered a compensable injury on May 27, 1991, and received benefits and treatment therefor until March 20, 1992. Since September 11, 1991, the claimant had been under the care of Dr. Antonio Certo, M.D., who believed claimant’s condition was consistent with Reflex Sympathetic Dystrophy (RSD). On March 17, 1992, Dr. Certo was shown a surveillance videotape by the E/C’s representative. Prior to the viewing, Dr. Certo believed claimant was incapable of returning to her former employment, but Dr. Certo found claimant’s activities on the surveillance tape to be inconsistent with claimant’s presentation at his office. Thus, on April 1, 1992, without further examination of the claimant, Dr. Certo told her that he no longer felt comfortable treating her and advised that he believed she was capable of returning to her former job. In Dr. Certo’s deposition, taken on July 9, 1992, he stated that his diagnosis changed from RSD to a “resolved pain problem.” He placed claim[14]*14ant at maximum medical improvement (MMI) on April 1, 1992 with no permanent impairment and no restrictions.

Dr. Uricchio, who did not personally examine claimant, reviewed the surveillance videotape in mid-July, 1992. He stated that he did not know how the tape got into his offiee, but that one of his employees simply came back and handed the tape to him.

On April 22,1992, claimant filed a claim for benefits; that claim was later amended on July 28,1992. On May 1,1992, claimant filed a discovery request specifically seeking, among other things, the surveillance videotape. This discovery request was followed by a letter from claimant’s counsel to the E/C’s counsel, dated May 22, 1992, requesting the “videotaped surveillance,” among other things. Counsel for the E/C responded by letter June 3, 1992, that “[p]ursuant to Rule 4.090(g), videotapes, surveillance is not properly discoverable at this time.”

During Dr. Certo’s deposition, claimant interposed an objection to any testimony regarding the surveillance tape based, in part, on Perez v. Eastern Airlines, 569 So.2d 1290 (Fla. 1st DCA 1990), regarding ex parte communications by the E/C with claimant’s physician. Claimant’s counsel noted that the claimant had not yet viewed the surveillance tape at the time of the July 9th deposition. The claimant had been deposed June 25, 1992. During the testimony of Dr. Uricchio, in September 1992, claimant’s counsel again objected to any testimony concerning the surveillance evidence.

A pretrial stipulation was executed on July 13, 1992. The surveillance tape was not listed as an exhibit, but the E/C listed, as one of its witnesses, “surveillance Rep.” A hearing on the claim was initially scheduled for October 28, 1992, but in September 1992, the hearing was continued until December 1, 1992.

By letter dated October 13, 1992, the E/C advised claimant’s counsel that the videotape was now available for viewing. Claimant’s counsel responded by letter that he would not view the tape at that late date inasmuch as the videotape had not been timely produced, that counsel believed it had been used in violation of Perez, as indicated during the doctors’ depositions, and that an objection was being made to the use of the tape at trial.

At the hearing, the JCC took up the claimant’s motion to strike portion of Dr. Certo’s deposition testimony relating to the claimant’s April 1, 1992 visit at which Dr. Certo stated that he did not wish to treat claimant further after viewing the surveillance tape. Also at issue was whether the surveillance tape would be admissible at the final hearing.

The JCC reviewed the factual events up to the date of the merits hearing and received legal argument. The JCC deferred ruling on the matter, but in the final order, the JCC did strike portions of Certo’s deposition and disallowed the surveillance tape. In so ruling, the JCC stated:

In considering the Employee’s argument to quash the use of the videotape at hearing and its use in showing it to Dr. Certo without advising the Employee’s Attorney, I find this to be a valid basis to quash the videotape as evidence in this cause. The Employer/Carrier’s failure to disclose and furnish the videotape to the Employee’s Attorney was a willful violation of discovery rules Virginia Williams v. [Walt Disney World], [583 So.2d 794] (Fla. 1st DCA 1991). I find that the videotape was discoverable once it was apparent that the Employer/Carrier intended to use the videotape as evidence or contemplated its use, which was certainly prior to October, 1992, some two (2) weeks before the original date of the hearing in this cause. I find the Employer/Carrier’s argument that it was not aware that it intended to use the videotape and that when it was shown to Dr. Certo, it was not accompanied by commentary to be ludicrous.
I also find the Employer/Carrier failed to apprise the Employee’s Attorney of its intent to use the videotape in an obvious effort to change the opinion of Dr. Certo, to be [in] violation of both the rules of discovery and the principles of the Adelman Steel Corp. v. [Winter], [610 So.2d 494] (Fla. 1st DCA 1992) case. Thus I agree with the Employee’s counsel’s argument, that the blatant discovery violation [15]*15of the Employer/Carrier was wilful and tainted the testimony of Dr. Certo, after the date he saw the videotape.

The E/C urges on appeal that the JCC erred in relying upon Williams v. Walt Disney World, in finding a “willful” discovery violation. The E/C urges further that the JCC erred in quashing the tape on the authority of Perez v. Eastern Airlines, Inc., supra, and Adelman Steel Corp. v. Winter, supra. We disagree.

Under Perez (which was not cited in the order under review but was cited to the JCC at the merits hearing), and Adelman, ex parte communications by the E/C’s representatives with the claimant’s medical providers is not prohibited prior to the existence of an adversarial relationship between the E/C and the claimant. In Adelman, we held that the filing of a claim marked the beginning of the adversarial relationship. We did not preclude, however, a holding that the furnishing of surveillance videotapes to a claimant’s physician might also evidence the beginning of an adversarial relationship where, as here, the tape has not been made available to the claimant. We further note that in this case, although the tape was shown to Dr. Certo prior to the filing of a claim, the tape was viewed by Dr. Uricchio long after the claim was filed, and after the time for production under claimant’s request had expired. While Dr. Uricchio did not state that the tape was furnished to him by the E/C, it does not strain credulity to assume that the tape made its way to Dr. Urieehio’s office through the actions, directly or indirectly, of the E/C. Whether or not the ex parte

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Bluebook (online)
643 So. 2d 13, 1994 Fla. App. LEXIS 8656, 1994 WL 478670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holiday-inn-v-re-fladistctapp-1994.