
    Alvin L. FREEMAN, Appellant, v. IMC-AGRICO COMPANY and Crawford & Company, Appellees.
    No. 95-1523.
    District Court of Appeal of Florida, First District.
    Aug. 5, 1996.
    Rehearing Denied Sept. 25, 1996.
    
      E. Taylor Davidson of DiCesare & Davidson, P.A., Lakeland, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.
    Charles E. Bentley and Jeffrey E. Appel of Holland & Knight, Lakeland, for Appel-lees.
   PER CURIAM.

Alvin Freeman appeals an order which denied his claim for workers’ compensation benefits relating to a compensable back injury. We conclude that the order recites certain findings of fact for which there is no record support and, therefore, reverse and remand with directions for reconsideration.

Initially, appellant challenges the admission of an alleged hearsay document prepared by the employer’s safety director. We agree that the document contains hearsay subject to no exception and should not have been admitted. While receiving the document into evidence, the judge of compensation claims (JCC) acknowledged that it was hearsay, but stated that he would make no finding which was supported only by hearsay. Thus, although the document was erroneously received, it was not received for proving the truth of the matters asserted therein.

The appellant contends further that the following findings in the order are wholly lacking in record support:

6.I find that Claimant was urged by his supervisor to come in on 1/2/93, but he claimed that he was too nervous to report to work....
10. I find that on 1/6/93, after refusing to return to work at light duty, Claimant was warned by letter that his absences were considered unexeused, and that the Employer would take disciplinary action if Claimant failed to heed the warning. I find the warning to be in accordance with the Employer’s standard policy, as stated by Doug Wampole and George Bushn, whose testimony I accept.
11. I find that on 1/7/93, Claimant failed to attend physical scheduled therapy (sic) because he claimed to not have transportation. He was told by the Employer to take a cab to therapy, but he did not comply. He later advised the Employer that he would not be attending therapy in Bartow or Lakeland....
IB. I find that on 1/11/93, ... Claimant went to Lakeland Regional Medical Center emergency room, with complaints and history consistent with prior accounts, except that he told an emergency room nurse, as documented in medical records, that he recently fell in his bathtub re-injuring his back.
14. I find that on 1/15/93, Claimant reported for work and was observed walking normally from the parking lot until he was about 20 feet from the door, at which time he began walking bent over and more slowly. Claimant’s next scheduled work day was 1/19/93.... He told his foreman he had contacted Dr. Cherry, but he needed the Employer’s approval before Dr. Cherry would see him. The Employer denied the authorization to see Dr. Cherry and scheduled an appointment for Claimant to see Dr. Sweeney that day, but Claimant did not go to the doctor’s office after he left work. He later told the Employer that he wouldn’t see Dr. Sweeney, but would see his own doctor, whom he wouldn’t identify....
16. I find that on 1/21/93, the Employer sent a letter to Claimant explaining that only Watson Clinic Bartow and Dr. Melton were authorized, and that all other health care providers were not authorized, and would have to be paid by Claimant and/or group health insurance. Claimant was urged to follow the instructions given by Dr. Melton regarding physical therapy and restricted work duties....
17. Dr. Merritt told the Employer that he would stand behind the disability slip information even though he hadn’t seen Claimant recently....
18. The Employer/Carrier denied Claimant’s temporary partial benefits requests for the period of time from 12/26/93 (sic) through 2/5/93 on the basis of voluntary limitation of income, as light duty has been available to Claimant at all times as approved by Dr. Sweeney and Dr. Melton,
25. Claimant claimed ... to have seen a specialist in Detroit named Dr. Smith. Claimant would not be more specific at the time of the deposition; however, he did agree to provide this doctor’s full name and address to his attorney who in turn will forward it to the Employer/Carrier prior to mediation. Claimant never accomplished this....
27. [Claimant] further stated that he spent most days drinking alcohol, and taking illicit pills which he .purchased off the street....

Our review of the record reveals that the order either mischaraeterizes the evidence or recites facts for which there is no competent record support. For example, there is no evidence that claimant “fell in his bathtub reinjuring his back.” Nor is there any evidence of a fall in the bathtub; the emergency room nurse’s notes indicate merely that claimant reinjured his back “while trying to bathe.” Moreover, the defense of an intervening act was not raised below, making the pertinence of this finding somewhat tenuous at best. Counsel for appellees has, additionally, failed to direct this court to specific record citations to support the challenged findings.

Finding no competent evidence to support these findings, we reverse the ultimate conclusion that appellant suffered no permanent impairment. On remand, if the JCC should determine once again that appellant suffered no permanent impairment causally related to a compensable injury, any such determination must be justified by specific findings, based on competent and substantial evidence. As discussed above, the document prepared by the employer’s safety director should not be considered as competent evidence of the facts recited therein. The denial of wage-loss benefits and the findings concerning that portion of the claim alleging a psychiatric injury, being dependent upon a predicate physical injury, are likewise vacated.

One final issue warrants discussion. The appellant has urged that Dr. Melton, an orthopedic surgeon, was not competent to testify concerning the reasonableness and medical necessity of chiropractic treatment. The supreme court has expressly rejected the argument that appellant seeks to advance. See Clair v. Glades County Board of Commissioners, 649 So.2d 224 (Fla.1995). Physicians are not precluded from testifying concerning a treatment outside the physician’s peer group, upon a showing of sufficient competence to opine concerning the reasonableness and medical necessity of a particular treatment. Clair, 649 So.2d at 225. The competence of an expert to testify is a matter within the JCC’s discretion and we find no abuse of that discretion on this record. On remand, therefore, the JCC is free to consider Dr. Melton’s opinion regarding the reasonableness and medical necessity of chiropractic treatment.

AFFIRMED in part, REVERSED in part and REMANDED for further proceedings.

BARFIELD, C.J., and ERVIN, J., concur.

KAHN, J., concurs and dissents with opinion

KAHN, Judge,

dissenting in part and concurring in part.

I agree with the majority that the specific listed portions of certain of the findings below are unsupported by the record. However, a JCC’s partial reliance on factual information not placed in the record constitutes harmless error where other competent substantial evidence contained in the record supports the conclusions. See Scott v. Bisanti Services, Inc., 634 So.2d 292 (Fla. 1st DCA 1994) (JCC’s reliance, in part, on deposition not introduced into evidence was harmless error where other competent substantial evidence in the record supported the findings); Compton & Associates, P.A. v. Wilkerson, 580 So.2d 626 (Fla. 1st DCA 1991) (erroneous reliance on medical evaluation not admitted into evidence was insufficient to require reversal where award was supported by other competent substantial evidence). In my view, this rule applies to the instant case because competent substantial evidence supports the JCC’s order even absent the erroneous factual findings. I would therefore characterize the error as harmless and affirm the decision.

Considering the order absent the unsupported factual findings, record evidence will support the judge’s conclusions. First the JCC’s holding that claimant suffered no permanent physical impairment as a result of his December 26,1992, accident is still supported by competent substantial evidence. In finding number 13, the JCC’s reliance on Dr. Melton’s opinion that claimant’s permanent impairment was the result of an intervening cause remains unaffected. Although the majority takes issue with the unsupported bathtub fall (and I agree), the remaining portions of finding number 13 go unmentioned. For instance, the JCC found that any permanency suffered by claimant was due to “some other unrelated cause.” In making this finding, the JCC correctly relied on Dr. Melton’s testimony which was suggestive of another injury not reported by claimant. Moreover, in the same finding, number 13, the JCC found that the claimant was so lacking in candor that his testimony and medical history were totally unworthy of belief. None of the other medical evidence accepted by the JCC, and supporting a finding of no permanent impairment, appears affected by any errors in the order. Although the testimony of a chiropractor, Dr. Merritt, suggests permanent impairment, the JCC’s rejection of that testimony is supported by the record. Finally, the JCC’s finding that claimant was wholly unbelievable is still supported by the record even without considering the factual errors. Therefore, because other competent substantial evidence in the record supports the JCC’s decision, his partial reliance on the factual errors contained in the order is harmless error.

Record evidence supports the finding that Dr. Merritt’s testimony was not credible. A JCC can choose to reject the testimony of one doctor without explanation when it conflicts with the testimony of several others as long as the reason for doing so is apparent in the record. Stacy v. Venice Isles Mobile Home Park, 635 So.2d 1039 (Fla. 1st DCA 1994). Dr. Merritt’s diagnosis of serious injury where several other doctors were unable to discern any objective indications of injury supports the JCC’s finding that Dr. Merritt’s conclusions were inconsistent with the accepted medical evidence. Further, the accepted medical evidence found chiropractic treatment to be contraindicated. The JCC also found Dr. Merritt not to be credible based upon his own personal knowledge of Dr. Merritt. Finally, the JCC found that Dr. Merritt engaged in fraudulent behavior concerning the claimant’s chiropractic bills. Therefore, competent substantial evidence exists to support the JCC’s conclusion that Dr. Merritt was not credible.

Similarly, competent substantial evidence exists to support the finding that claimant is not credible. The JCC determined that claimant was being untruthful about his alleged transportation problems. This finding is supported, in part, by George Bushn’s hearing testimony in which he noted that claimant was unable to keep scheduled physical therapy appointments with authorized doctors because he claimed to have no transportation, yet he was able to keep an appointment with Dr. Merritt one day after his scheduled physical therapy appointments. The JCC further found that claimant was uncooperative concerning his authorized medical treatment, untruthful with the authorized doctors, and “unmotivated to improve or return to work.” This finding is supported by Dr. Melton’s testimony. The JCC determined that claimant had been uncooperative with the employer/carrier during pretrial discovery because he had failed to show up for a deposition, he refused to disclose the addresses of his various places of residence or the names of those with whom he had resided, and he failed to treat with the physicians authorized by the employer/carrier. Further, the JCC determined that claimant had been untruthful when he claimed he could not report to work because he could not stand up, as such complaints were inconsistent with the accepted medical evidence. The JCC also found that claimant generally “overexaggerated his complaints and intentionally misrepresented his physical condition.” This finding is also supported by the fact that claimant’s complaints were not consistent with the ascribed medical restrictions. Finally, the JCC’s findings were also supported by his characterization that claimant’s “lack of candor, furtive demeanor, and inconsistent statements render his testimony to be totally unworthy of belief.”

Competent substantial evidence also exists to support the finding that claimant’s psychiatric impairment is not related to his industrial accident. First, the JCC determined that claimant had exaggerated his physical symptoms and had understated other causes of stress rendering the opinions of the psychiatrists “fatally flawed” concerning causation. Second, the JCC found that claimant’s claims of depression were at least as likely to be the result of his significant personal problems as his minor industrial injury. These findings are supported by claimant’s own testimony describing his various personal problems. For example, claimant testified that someone “shot the house up” in which he was staying. Also, claimant had recently been divorced, and he stated that his wife’s plan to remarry upset him. Additionally, claimant testified that he was depressed, drank alcohol “a lot,” and took pain pills that he bought “from people off the street.” The JCC’s exaggerated statement that claimant “spent most days” drinking and taking illicit drugs is mere surplus in light of claimant’s admissions concerning his behavior. These findings are competent substantial evidence that any psychiatric impairment that claimant might have are not the result of his industrial injury.

I would view the factual errors in the JCC’s order as either related to collateral matters or merely cumulative to record evidence that does support the conclusions. The dispositive issue in this case is whether claimant suffered a permanent impairment as the result of an industrial accident. Given the JCC’s rejection of Dr. Merritt’s testimony and the JCC’s conclusions concerning claimant’s credibility, I am unable to envision a scenario in which the factual errors pointed out by the majority would affect the outcome of this case. Accordingly, I view the errors in the order before us as harmless and would affirm. I concur in the majority’s treatment of the testimony of Dr. Melton.  