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Blanco v. Creative Management Services, LLC

Florida Court of Appeals, First District

October 17, 2019

Ernesto Blanco, Appellant,
v.
Creative Management Services, LLC/ Technology Insurance Company, Appellees.

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

          Date of Accident: December 4, 2017

          On appeal from an order of the Judge of Compensation Claims. Walter J. Havers, Judge.

          Divya Khullar of Khullar, P.A., Tamarac, for Appellant.

          Rayford H. Taylor of Hall Booth Smith, P.C., Atlanta, for Appellees.

          PER CURIAM.

         Ernesto Blanco appeals the Judge of Compensation Claims' order denying his claim for worker's compensation benefits. The JCC did not find credible Blanco's claim that exposure to construction or cement dust from his job site during his short-term employment with Creative Management Services caused his respiratory condition. The JCC also agreed with the expert medical opinion that Blanco's seventeen-year history of smoking cigarettes caused his respiratory condition. Blanco makes several arguments for reversal. Finding no error, we affirm.

         Facts

         Blanco smoked cigarettes for seventeen years before he began work with CMS. Blanco's accounts of how much he smoked varied. The number of cigarettes he claimed that he smoked daily ranged from half a pack per day up to three packs per day. In mid-November 2017, his primary care doctor noted that Blanco was still smoking heavily and that he reported more frequent use of an inhaler. The doctor also recorded in his notes of Blanco's visit a diagnosis of probable chronic obstructive pulmonary disease.

         Weeks after the November visit to his doctor, Blanco started work with CMS to set up booths for an art show. The job required Blanco to move furniture, build walls and booths, paint, and hang signs. During the eleven days he worked for CMS, Blanco claimed that he saw dust and debris in the air at the job site. According to Blanco, other workers were milling or grinding concrete at the loading dock. Blanco stated that a crew would periodically sweep and hose down the area, but it did not control the dust. He claimed that he had trouble breathing and was using his inhaler more often while at the job site. On the morning of December 5th, Blanco woke up and had trouble breathing. His wife called 911 and paramedics transported Blanco to the emergency room in respiratory distress. Doctors diagnosed him with advanced COPD and an acute exacerbation of unspecified asthma. Blanco made a claim for worker's compensation benefits, alleging that the exposure to dust and debris at the CMS job site caused him to suffer from COPD. The E/C denied compensability on grounds that the alleged on-the-job exposure to dust was not the major contributing cause of Blanco's respiratory condition.

         Analysis

         Blanco raises five arguments challenging the JCC's order denying benefits. We affirm on all and write only to address his arguments about the admission of expert testimony and the evidence supporting the JCC's order denying benefits.

         Blanco contends that no competent, substantial evidence supports the JCC's decision to deny benefits. We disagree. Blanco had the burden to prove his claim. We review the JCC's findings of fact to determine whether competent, substantial evidence supports the JCC's findings. See, e.g., Mylock v. Champion Int'l, 906 So.2d 363 (Fla. 1st DCA 2005). A decision in favor of the party without the burden of proof need not be supported by competent, substantial evidence. See Fitzgerald v. Osceola Cty. Sch. Bd., 974 So.2d 1161, 1164 (Fla. 1st DCA 2008); Mitchell v. XO Commc'ns, 966 So.2d 489, 490 (Fla. 1st DCA 2007). As this court observed in Mitchell, "a JCC may reject in whole or in part even uncontroverted testimony the JCC disbelieves." Id. (citing following a no contest plea).

         Here, the JCC concluded that Blanco did not meet his burden to show that exposure to dust and debris at the CMS job site was the major contributing cause of his respiratory condition. The JCC rejected Blanco's testimony about the alleged cause of his condition. The JCC had a chance to observe Blanco's demeanor and found that he lacked credibility. He also found that Blanco was an unreliable witness based on the substantially incomplete and contradictory medical histories he provided to his doctors. As a result, the JCC concluded that Blanco failed to meet his burden to show that he suffered an accident from exposure "in the course and scope of his employment." The JCC was in the best position "to evaluate and weigh the testimony and evidence based on its observation of the bearing, demeanor, ...


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