         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2664
                 _____________________________

WILLIAM RENTE,

    Appellant,

    v.

ORANGE COUNTY BOCC and
CANNON COCHRAN
MANAGEMENT SERVICES, INC.,

    Appellees.
                 _____________________________


On appeal from an order of the Judge of Compensation Claims.
Thomas W. Sculco, Judge.

Date of Accident: September 8, 2015.

                       February 11, 2019

PER CURIAM.

     In this workers’ compensation appeal, the claimant, William
Rente, seeks reversal of the order denying him benefits. The Judge
of Compensation Claims (JCC) erred by failing to complete the
analysis required by case law and section 440.20(4), Florida
Statutes (2015). He further erred in excluding portions of the
testimony of an unauthorized physician. We, therefore, reverse
and remand for further proceedings.
                       Factual Background

     On September 8, 2015, Rente slipped and fell on an algae-
covered walkway. The Employer/Carrier (E/C) initially accepted
compensability, and Rente received authorized medical care at
Centra Care, starting on September 11. He was diagnosed with a
contusion of the sacrum and right hip pain. Because of his
continuing complaints, Centra Care referred him for an MRI. The
study, completed on October 21, revealed moderate multilevel
degenerative disc disease, including a diffuse disc bulge at the L4-
5 level and superimposed bilateral posterior lateral disc
herniations, right greater than left, causing severe bilateral neural
foraminal stenosis and impingement of the bilateral L4 nerve
roots. The age of the condition was indeterminate.

     On November 9, Dr. Haque, the E/C-authorized orthopedic
spine surgeon, examined Rente. Dr. Haque testified that Rente
complained of continuing symptoms of low back pain radiating to
the right lower extremity. The doctor stated that Rente gave him
a history of episodic low back pain that predated the workplace
accident, but explained that it was different from his present
complaints and that it had not prompted him to seek medical care.
Rente told the doctor that he had previously seen a chiropractic
physician for his neck, but not for his low back.

     The adjuster testified that Rente did not name his
chiropractor until December 4, 2015, when Rente reported to the
Carrier that he had received treatment from Dr. Fogarty prior to
his workplace accident. Thereafter, the Carrier secured Dr.
Fogarty’s records and scheduled Rente for an independent medical
evaluation. On May 1, 2016, the E/C filed their Notice of Denial,
asserting that the 2015 workplace accident was no longer the
major contributing cause of Rente’s need for treatment or
entitlement to disability benefits.

                         Litigation Below

     Rente argued at the final hearing that the E/C were estopped
from denying compensability because they waived that right by
failing to deny compensability within 120 days, and the E/C
accepted as compensable the low back condition by providing
treatment for it. The E/C argued that the exception to the 120-day
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rule applied because there were facts and information they could
not have discovered within 120 days.

     At the hearing, the E/C objected to any opinion testimony
voiced by Dr. Fogarty. The JCC agreed that opinions given by
unauthorized physicians were admissible to the extent the
testimony addressed the diagnosis of a pre-existing condition;
however, when the JCC was advised that Dr. Fogarty had been
deposed after the subject claim was filed and had been asked
questions about Rente’s prior diagnosis, the JCC sustained the
objections, concluding that any testimony given after the date of
the accident was an inadmissible opinion.

     The JCC denied and dismissed all of the claims with
prejudice. He rejected the E/C’s argument that they accepted
compensability only of an exacerbation of a pre-existing condition,
and the E/C has not challenged that finding on appeal. The JCC
noted, however, that Dr. Haque changed his opinion on causation
after reviewing Dr. Fogarty’s pre-accident records that detailed
treatment provided for Rente’s low back complaints, and that Dr.
Haque’s change of opinion, along with the E/C’s notice of denial,
occurred more than 120 days from the initial provision of benefits.
The JCC explained that Rente’s misrepresentation about his prior
low back symptoms to Dr. Haque, as testified by Dr. Haque, does
not change this part of the analysis. Nevertheless, “[i]t is highly
significant . . . to the issue of whether ‘the carrier can establish
material facts relevant to the issue of compensability that it could
not have discovered through reasonable investigation within the
120 day period . . . .’”

     The JCC concluded that the E/C performed “a reasonable and
timely investigation into the compensability of claimant’s low back
condition. It was claimant’s misstatements to Dr. Haque about
prior symptoms and treatment to his low back that were the direct
and proximate cause of any delay in the [E/C] issuing its notice of
denial.” Accordingly, the JCC found that the E/C had “not waived
the right to deny compensability of claimant’s low back condition.”
The JCC did not, however, decide when the E/C had sufficient
information to renew its investigation after receipt of the
additional information in this case.


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                          120-Day Rule

    Section 440.20(4) provides:

    If the carrier is uncertain of its obligation to provide all
    benefits or compensation, the carrier shall immediately
    and in good faith commence investigation of the
    employee’s entitlement to benefits under this chapter and
    shall admit or deny compensability within 120 days after
    the initial provision of compensation or benefits as
    required under subsection (2) or s. 440.192(8).
    Additionally, the carrier shall initiate payment and
    continue the provision of all benefits and compensation
    as if the claim had been accepted as compensable, without
    prejudice and without admitting liability.            Upon
    commencement of payment as required under subsection
    (2) or s. 440.192(8), the carrier shall provide written
    notice to the employee that it has elected to pay the claim
    pending further investigation, and that it will advise the
    employee of claim acceptance or denial within 120 days.
    A carrier that fails to deny compensability within 120
    days after the initial provision of benefits or payment of
    compensation as required under subsection (2) or s.
    440.192(8) waives the right to deny compensability,
    unless the carrier can establish material facts relevant to
    the issue of compensability that it could not have
    discovered through reasonable investigation within the
    120-day period.

      The JCC’s finding that the E/C established “material facts
relevant to the issue of compensability that it could not have
discovered through reasonable investigation within the 120 day
period” has record support. Likewise, the JCC’s conclusion that
“[i]t was claimant’s misstatements to Dr. Haque about prior
treatment to his low back that were the direct and proximate cause
of any delay in the [E/C] issuing its notice of denial” has record
support. * That the cause for the delay was a misrepresentation

    *We would note that the E/C neither pled nor pursued a fraud
defense pursuant to sections 440.09(4) and 440.105(4)(b), Florida
Statutes.

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does not control the analysis required here, however, because the
JCC erred when he found the E/C “perform[ed] a reasonable and
timely investigation into the compensability of claimant’s low back
condition.” The JCC could not reach such a conclusion in the
absence of a finding as to when that investigation should have
begun.

     The statute does not require that certainty exist before the
investigation period begins to run; otherwise, why would a carrier
have 120 days to investigate? As noted in Mims v. Confederated
Staffing, 940 So. 2d 518, 520 (Fla. 1st DCA 2006), “[t]he statute
does not . . . provide that the carrier have nothing less than actual
notice, but rather that it have sufficient information to enable it to
deny compensability within 120 days.”               Further, “[t]he
requirement of an ‘immediate and good faith’ investigation does
not mandate that every investigative act that can be taken is, in
fact, taken. It is merely a requirement that the E/C be prepared
to decide, within 120 days, what position they wish to take on a
given claim, and be accountable for that decision.” Wintz v.
Goodwill, 898 So. 2d 1089, 1091 (Fla. 1st DCA 2005) (emphasis
added).

     When the 120-day period begins to run is a factual
determination. See Sierra v. Metropolitan Protective Services, 188
So. 3d 863 (Fla. 1st DCA 2015).

     If there were material facts the E/C was not aware of, the
carrier still had the obligation to conduct an investigation once it
became aware of sufficient pertinent information. In Mims,
following the claimant’s December 31, 2003, workplace accident,
the E/C accepted compensability of the claimant’s low back
condition and provided both medical and indemnity benefits. 940
So. 2d at 519. The diagnosed condition was an L4-5 disc herniation
for which surgery was recommended and performed. Id. The
surgical note prepared on June 24, 2004, “disclosed spinal stenosis
with no evidence of disc herniation.” Id. The surgeon, in a
conference with the E/C’s attorney on November 15, 2004,
“informed the E/C’s attorney that 100 percent of claimant’s need
for medical treatment was caused by pre-existing degenerative
changes due to claimant’s personal condition, spinal stenosis.” Id.
In its analysis, the Mims court explained as follows:

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    Although we acknowledge that nothing in the medical
    records prior to the laminectomy conducted on June 24,
    2004, placed the E/C on notice that the back injury
    suffered by claimant during the course of his employment
    was not the major contributing cause of his condition, we
    are unable to uncover any support in the record for the
    judge’s finding that such notice was not received by the
    carrier until the conference of November 15, 2004.

    Dr. Scharf’s surgery notes of June 24, 2004, should have
    reasonably brought to the carrier’s attention the fact that
    claimant’s personal condition preexisted the industrial
    accident, thereby alerting it to the necessity of beginning
    an investigation, yet it failed to take any action within
    120 days from such notice. The carrier presented no
    evidence that Dr. Scharf did not provide his office notes
    to it, that he misled it, or that his notes were lost or
    misplaced. The only evidence offered by the carrier as an
    excuse for its failure to deny within the 120-day period
    was that it only actually became aware as of November
    15, 2004, that the industrial accident was not the major
    contributing cause of the injury. The statute does not,
    however, provide that the carrier have nothing less than
    actual notice, but rather that it have sufficient
    information to enable it to deny compensability within
    120 days.

    In our judgment, the carrier had such information
    through the provision of Dr. Scharf’s notes.

Id. at 520 (citation omitted).

    Here, on remand, the JCC must determine when the E/C had
material facts relevant to the issue of causation that called into
question their obligations to Rente, thus triggering the duty to
“immediately and in good faith commence investigation of the
employee’s entitlement to benefits under this chapter” and
whether they denied compensability within 120 days thereafter. §
440.20(4), Fla. Stat.




                                 6
                      Exclusion of Testimony

     A JCC’s exclusion of evidence is reviewed for an abuse of
discretion. See Escutia v. Greenleaf Prods., Inc., 886 So. 2d 1059,
1060 (Fla. 1st DCA 2004). Section 440.13(5)(e), Florida Statutes
(2015), provides the only medical opinion testimony admissible
before the JCC is that of expert medical advisors, independent
medical examiners, and authorized treating physicians.

     Nevertheless, this court has determined the testimony of a
physician other than those enumerated in section 440.13(5)(e) is
admissible to the extent it is limited to “a factual report of the
information contained in [a doctor’s] office records” regarding the
claimant. Office Depot v. Sweikata, 737 So. 2d 1189, 1191 (Fla. 1st
DCA 1999). That testimony can include a claimant’s complaints,
the doctor’s diagnosis, and the prescribed treatment. Id.

     Our review of the JCC’s order failed to locate any specific
guidance as to what portions of Dr. Fogarty’s records and
deposition the JCC found were admissible, if any.              When
referencing Dr. Fogarty, the JCC refers to the doctor’s records, not
his deposition testimony. To the extent the JCC excluded any of
Dr. Fogarty’s deposition testimony or any portion of the doctor’s
reports, it was error. Dr. Fogarty was not asked to express an
opinion relative to the issue before the JCC, which was medical
causation. Rather, the doctor was asked to describe the treatment
he provided to Rente and was asked to put Rente’s complaints and
the clinical exam results into context. See Gutierrez v. Vargas, 239
So. 3d 615, 622 (Fla. 2018) (“While an expert witness assists the
jury to understand the facts, a treating physician testifies as a fact
witness ‘concerning his or her own medical performance on a
particular occasion and is not opining about the medical
performance of another.’ Fittipaldi USA, Inc. v. Castroneves, 905
So.2d 182, 186 (Fla. 3d DCA 2005). This necessarily involves
testifying with regard to the exercise of the treating physician’s
specialized medical knowledge as applied to other facts of the case,
namely the plaintiff’s symptoms. A treating physician is a fact
witness, and testifies to past facts based on personal knowledge.”).

    Arguably, the closest Dr. Fogarty came to expressing an
opinion was in answer to the question of whether he ever suspected
Rente was suffering from a herniated disc. But this question only
                                  7
asks that the doctor summarize Rente’s symptoms, the results of
diagnostic testing, and his ensuing diagnosis. The JCC should
have considered the totality of Dr. Fogarty’s testimony and
records.

                           Conclusion

    On remand, the JCC must determine the start date of the 120-
day pay-and-investigate period and then determine whether the
E/C denied compensability in a timely manner. If the JCC
determines once again that the E/C did not waive the right to deny
compensability, the remaining issues must be re-addressed after
consideration of Dr. Fogarty’s testimony in full.

    REVERSED and REMANDED for further proceedings consistent
with this opinion.

WOLF and BILBREY, JJ., concur; KELSEY, J., dissents with opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

KELSEY, J., dissenting.

     This case is not about the 120-day rule so much as it is about
the E/C’s independent right to contest major contributing cause.
The JCC expressly found that pre-existing conditions were the
MCC of Claimant’s need for treatment after his fall. This finding
is supported by competent, substantial record evidence in the
Claimant’s medical records and in the opinions of Drs. Haque and
Meinhardt, which the JCC was entitled to accept in lieu of the
contrary opinion from IME physician Dr. Greenberg. There is no
outcome-determinative reason to remand for the JCC to specify
which parts of Dr. Fogarty’s deposition were improper opinion
testimony and then ask Dr. Meinhardt if that changes his ultimate
opinions on MCC. In relevant part, Dr. Fogarty’s deposition
testimony duplicated the contents of his records concerning
Claimant’s complaints, examinations, and test results, which
                                8
alone are sufficient to support a conclusion that the fall was not
the MCC of the need for treatment. With or without the clearly
factual parts of Dr. Fogarty’s deposition, the opinions of Drs.
Haque and Meinhardt were sufficiently supported by competent,
substantial evidence including Dr. Fogarty’s records, which
duplicated the factual parts of his deposition testimony. The E/C
was not required to cross-appeal in order to rely on the JCC’s
express finding, supported by competent, substantial evidence,
that the Claimant’s fall was not the MCC of his need for treatment.
A remand on this record simply runs up the costs of reaching the
same conclusion. We should affirm in all respects.

                 _____________________________


Bill McCabe, Longwood, and Manuel Franco, Tampa, for
Appellant.

Kristen L. Magana of Broussard, Cullen & Blastic, P.A., Orlando,
for Appellees.




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