I was going to write that this case is the “big one.”  But, they all seem like big ones these days ( TPD, IME’s).  However, I do not want to diminish this importance of this recent decision as it will have a significant impact on defending claims as well as provide ample ammunition to the Claimant’s attorneys bar’s argument that the 2003 amendments are unconstitutional.

With that little pre-amble out of the way, lets dive into Staffmark v. Merrell.

In Merrell, Claimant injured his back in a compensable accident.  The E/C then discovered significant pre-existing back injuries from prior W/C claims and non-work injuries.  Claimant filed a PFB for low back treatment as well indemnity benefits.  The E/C denied the claim, alleging a pre-existing idiopathic condition.

The dispute came down to an Expert Medical Advisor (EMA) who testified that 40% of Claimant’s disability was related to the pre-existing condition and 60% related to the compensable accident.  As for the need for back surgery, the EMA related 75% to the compensable accident and 25% to the pre-existing condition.  Overall, the EMA found the major contributing cause to be the compensable accident.

At trial, the Judge rejected the E/C’s apportionment defense, finding a permanent aggravation of Claimant’s pre-existing condition.  On appeal the First DCA affirmed the JCC’s decision, but for different reasons.  For the purposes of this blog and E/C’s all over the state, the Court finally addressed the 2003 inclusion of apportionment.

First, s. 440.15(5)(b) allows apportionment between a compensable injury and Claimant’s pre-existing injuries and states as follows:

“The degree of permanent impairment or disability attributable to the accident or injury shall be compensated in accordance with this section, apportioning out the preexisting condition based on the anatomical impairment rating attributable to the preexisting condition. Medical benefits shall be paid apportioning out the percentage of the need for such care attributable to the preexisting condition.”

This is the opposite of major contributing cause.  Where if  the pre-existing condition(s) are 60% the major contributing cause and the compensable accident is just 40%, the claim is not compensable at all.  Apportionment still makes the claim compensable, but cuts out the non-compensable percentage.  In other words, the E/C only pays for the percentage it is responsible for. 

The principle of apportionment–dividing up liability between two sources–has been around for years before the 2003 changes.  However, it only applied to contribution claims between to E/C’s.  For example, if Claimant had an accident in 2008 with E/C #1 and then a second 2010 accident with E/C #2, then the two E/C’s would litigate to determine how much liability is apportioned (in percentages) between the two. 

With the 2003 changes, apportionment now applies to dividing up liability between the compensable accident of one E/C and Claimant’s pre-existing injuries.   The requirement is that the compensable injury be an acceleration or aggravation of the pre-existing injury or a merger of the two. 

The First DCA had yet to rule on this statute head on since 2003.  With Merrell, they rule definitively that apportionment of Claimants’ pre-existing conditions and compensable injuries was the Legislature’s clear intent with s. 440.15(5)(b).  

Not only did the Court affirm apportionment but clarified any misconceptions about the statute’s language.  An E/C, if just looking to apportion medical and temporary benefits, need not prove a permanent impairment, or overall MMI.  In fact, the E/C in this could not present a permanent impairment because Claimant was not at overall MMI (hence the recommendation for surgery).

Overall, this is huge for E/C’s.  Now, without a doubt they can apportion out pre-existing conditions from compensable injuries.  For example, if you have testimony or records from an authorized provider that 60% of the injury is your accident and 40% is pre-existing, you only have to pay for 60% of all future benefits.  This includes temporary benefits, impairment benefits, and of course medical benefits.  Claimants will have to pony up the 40% of the medical costs themselves.  (I assume that they will just have to pay the E/C 40% of the fee schedule price of medical services since it would be the lowest price.)

Yet, this is not a slam dunk for E/C’s.  The Merrell court still affirmed the JCC’s decision to deny the E/C’s apportionment defense because the E/C failed to present adequate evidence to the extent of Claimant’s prior injuries.  E/C’s will have to get precise information from the authorized doctors as to what they are apportioning out from the compensable accident.  Ambiguous pre-existing conditions like age, or degenerative changes may not be enough.  You may have to point to a specific accident or disease.  Obtaining Claimant’s prior medical records is key.  A quick view of an ISO Claims Summary is a great start towards your investigations.

Finally, it is important to read Judge Webster’s concurring opinion to Merrell.  While concurring opinions are not controlling, they might have an influence on future opinion and Judge Webster does not approve of s. 440.15(5)(b).   While he agrees that the statute is unambiguous and also affirms it, he thinks that it will increase litigation, but most importantly he views it as a violation of the Florida Constitution, art. 1, section 21, which states the following:

SECTION 21.  Access to courts.–The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

The original principle of Florida W/C is to provide full medical care and wage loss regardless of fault and without delay.  The premise being that as long as the benefits are substantial to injured workers, then W/C is a reasonable alternative to tort law.  In Judge Webster’s eyes, apportionment erodes these basic principles.

And this is exactly the same argument I am hearing from the Claimant’s bar.  Mark my words, the political and litigious aftermath of Emma Murray is not over.  A second round of potential Constitutional arguments is coming and it will not just be focused on attorney’s fees. 

But, at least for now, it is comforting to know that E/C’s have such a powerful weapon as apportionment in their arsenal.

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