In order to have a compensable workers compensation claim in Florida, you need to prove that the accident arose out of and in the course of your employment. In other words, the accident resulted from your work activity or performance of your job duties while you were employed and working. You will then need to have objective medical evidence that establishes to a reasonable degree of medical certainty that the accident that occurred at work is the major contributing cause of any resulting injuries. What does that mean? Reasonable degree of medical certainty means that the medical evidence must show not absolute certainty, but beyond speculation that the injuries sustained were causally related to your work activities. “Major contributing cause” is a term of art which means that the work-related injury is more than 50% responsible for your disability as compared to other non-work-related causes such as pre-existing conditions or prior injuries Fl. St. 440.09(1)(b). This only becomes an issue if there are other conditions or injuries which impact your overall disability. In order to be entitled to benefits, the medical evidence must establish that the work-related accident, and not the pre-existing or subsequent injury, was the major contributing cause of your disability. The Judge of Compensation Claims, (JCC), will generally consider treatment rendered prior to and after the accident, among other things, in determining whether the non-work related condition is or is not the major contributing factor of your impairment. Once you prove that the work-related accident was the major contributing cause of your injury, then your work-related injury will be found compensable, despite having a pre-existing injury or condition.
For example, assume a person injures his left knee at work, but also suffered from osteoarthritis in his knees, and later required total knee replacement surgery. Shortly after suffering the work-related knee injury, the injury was deemed the major contributing cause of the need for treatment and benefits and was found to be compensable. However, the osteoarthritis progressed to the point where it became more than 50% responsible for the claimant’s disability and need for treatment. At that point the carrier/employer established a break in the causal chain since the injury at work was no longer the major contributing factor of the claimant’s disability. The osteoarthritis which was a pre-existing condition, unrelated to the work accident, became the major contributing factor and therefore, the carrier/employer was no longer responsible for further benefits and treatment.
In general, once an injured worker establishes a compensable injury, by demonstrating that the accident arose out of and in the course of employment, then the burden shifts to the employer and carrier to show a break in the causal connection between the compensable injury and the requested treatment or benefits. An employer/carrier can show a break in the causal connection by the occurrence of a new accident or that the requested treatment was due to a condition unrelated to the injury.
Once you prove that the work-related injury is the major contributing cause, then the employer/carrier can dispute individual payments for benefits that are related to the pre-existing condition or injury. This is the principle of apportionment. The law describes apportionment as a merger of the work-related injury on a pre-existing condition which results in an aggravation or acceleration of the condition. The employer/carrier will only be liable for the disability and treatment associated with the compensable injury. Fl. St. 440.15(5)(b).
Apportionment requires medical evidence which generally involves a doctor setting forth the degree of disability attributable to the non-work related condition versus the degree attributable to the work related injury with percentages attributable to both. Apportionment is an affirmative defense that must be raised by the employer/carrier. Thus, the burden is on the employer/carrier to prove apportionment
The employer/carrier must establish with medical evidence the degree of impairment to be apportioned. It should be noted that the carrier/employer’s medical expert who testifies as to apportionment must meet the “Daubert” standard. This means that the medical expert’s testimony must be based upon sufficient facts or data, and be the product of reliable principles and methods which are to be reliably applied by the witness to facts of the case. So pure opinion testimony is not sufficient to support apportionment. For example, it is not sufficient that a doctor testify that he based his opinion on apportionment on the review of medical records and diagnostic studies and just came up with the percentages of apportionment after thinking about it. This is insufficient because there is no insight into what principles or methods were used to reach his conclusion or whether he applied any such principles or methods to the facts of the case. Moreover, it is insufficient that a doctor base his or her opinion on experience and treatment of the claimant and a review of the medical and treatment records in the file. Such is considered opinion testimony and will thereby be disregarded. Fl. St. 90.702.
It should be noted that under the law, an injured worker who has a previous disability and is eligible for benefits due to an aggravation or acceleration of the pre-existing condition, (apportionment), may be cut off from benefits if the worker misrepresents him or herself in writing as not having previously been disabled or compensated because of such previous disability at the time of becoming employed; and the employer detrimentally relies on this misrepresentation. 440.15(5). Thus, one should not misrepresent having a pre-existing condition upon obtaining employment.
If you suffer a subsequent injury as a result of the work-related accident, then it is your burden to prove that the work-related accident was the major contributing cause of the subsequent injury or aggravation. For example, if a claimant injures his or her leg at work, and then later suffers a heart attack and dies; the claimant would need to show that the work-related leg injury was the major contributing cause of the subsequent heart attack, as opposed to obesity, heart disease, alcohol use or other risk factors.
As demonstrated in this article, an injured worker must establish certain elements of his or her claim before being entitled to workers’ compensation benefits. The burden is on the injured worker to prove his or her claim which can be quite challenging in light of pre-existing conditions and subsequent injuries. If you have suffered a work-related injury, contact the Workers’ Comp Attorneys at the LaBovick Law Group to see what benefits you may be entitled to. We provide free consultations where we will review the facts of your case to determine the right course for you. Call us today at (561) 625-8400 for your free evaluation.