The opinion
FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1788
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ARTHUR GODWIN,
Appellant,
v.
HILLSBOROUGH COUNTY SCHOOL
BOARD/BROADSPIRE,
Appellees.
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On appeal from an order of the Judge of Compensation Claims.
E. Douglas Spangler, Judge.
Date of Accidents: July 11, 2016; September 26, 2016.
August 29, 2019
PER CURIAM.
In this workers’ compensation appeal, Arthur Godwin
(Claimant) raises two issues. Because competent substantial
evidence supports the Judge of Compensation Claims’ (JCC’s)
denial of compensability of the September 26, 2016, incident, we
affirm that decision without further comment. We write to address
Claimant’s argument that the JCC erred when he conferred with
the expert medical advisor (EMA) without counsel present.
After the JCC received the EMA’s report, which recommended
Claimant undergo an additional test to rule out a possible cause of
Claimant’s diagnosis, the JCC and the doctor spoke about the need
for the test. At a status conference later that day, the JCC
informed the parties about his conversation with the EMA and,
thereafter, entered an order granting the request and directed
Claimant to return to the EMA’s office for the test. At no point
below did Claimant raise any questions about, or objections to, the
JCC’s conduct.
Instead, on appeal, Claimant argues for the first time that the
JCC should not have conferred with the EMA outside of a hearing,
outside the presence of counsel for both sides, and without being
on the record. Claimant maintains that he had no recourse below;
thus, seeking review in this court was his only path for relief. We
disagree.
The Florida Administrative Code Rule 60Q-6.126(1) provides
that “[a]ny motion for disqualification of a judge shall be made and
determined pursuant to Fla. R. Jud. Admin. 2.330.” Section
440.442 provides that “[JCCs] shall observe and abide by the Code
of Judicial Conduct as adopted by the Florida Supreme Court.”
Canon 3(B)7 of the Code addresses ex parte communications
between a judge and persons involved in a proceeding. We see no
reason why Claimant could not have addressed his concerns below.
Likewise, we cannot discern any reason why the JCC could not
have apprised the parties of his intention to contact the doctor
before moving forward with the contact.
AFFIRMED.
ROBERTS, ROWE, and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Richard A. Sicking and Mark A. Touby of Touby, Chait & Sicking,
P.L., Coral Gables, for Appellant.
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Steven E. Hovsepian of Barbas, Nunez, Sanders, Butler &
Hovsepian, P.A., Tampa, for Appellees.
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