It’s always the weird ones that make precedent.

In a case that must be read to insure its existence, the First DCA today found that a breast implant can be considered in the category of “prosthetic devices”.  Beyond the obvious snickers the case of Pamela Mullin v. 7-Eleven is a significant decision in how it defines prosthetic devices and whether apportionment–the principle of dividing liability between a compensable injury and Claimant’s pre-existing medical conditions–applies to prosthetic devices.

In Mullin, Claimant suffered a compensable accident.   As a result of her injuries, her breast implant ruptured (you can’t make this up!) and required surgical repair.  The E/C denied this procedure because theirIndependent Medical Examiner (IME) testified that 25% of the rupture was related to the accident, while 75% of it was related to degenerative conditions.  The E/C argued that the apportionment standard of section 440.15(5)(b) applied and therefore it should only be responsible for payment for 25% of the rupture repaired.  The Judge of Compensation Claims agreed.

The First DCA first analyzed this case from the “prosthetic device” definition as found in s. 440.02(19).  In that section, damage incurred to a Claimant’s prosthetic device is deemed an “injury” if it arises out of the course of scope of employment.  Since compensability was not denied, the first question the Court was to answer is: Is the breast implant a prosthetic device?  The First DCA’s answer was yes, it is.   The Court rejected the E/C’s argument that the implant was for cosmetic purposes therefore it could not be a prosthetic device. 

In fact, in a footnote, the Court even compared the implant to eyeglasses, contending that a Claimant need not an expert in forensic failure analysis to prove damage.  (Well said.)  The face that they were damaged in a compensable accident is enough. 

Second, the Court analyzed whether a prosthetic device could even be apportioned out.  This rationale made the most sense. 

Apportionment is used to allocate liability between a compensable injury and a pre-existing medical condition.  The courts have applied term “pre-existing condition” in the context of medical condition or disease, but never as a state of fitness or general being.  Besides, are not all prosthetic devices 100% related to a pre-existing condition?  Therefore, to apply apportionment to a prosthetic device would mean to void section 440.02(19), and no damaged prosthetic would ever be eligible for repair.  For myself, this makes the most sense. 

In all, the First DCA in Mullin reaches a clarifiying decision using common sense analysis.

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