I am proud to announce a third appellate win under my belt, this time in defense of a favorable trial win for the Employer/Carrier.  Unfortunately, the First DCA did not comment on why they upheld the decision (and also remanded the case back to the Judge for a smaller issue of TPD clarification), but I wanted to use the facts of this case to explore the intricacies of the recent Byczinski decision, apportionment, and major contributing cause.

In particular, most cases that involve a pre-existing condition only have 2 major contributing causes.  In my case, we had multiple causes. . .

In De La Cruz v. Able Body Temporary Staffing, Claimant suffered a compensable right knee.  Claimant admitted to a prior work injury in 2001 to the same knee that required surgery.  During treatment for the knee, Claimant’s authorized doctor opined that Claimant needed a total knee replacement but found the major contributing cause to be Claimant’s pre-existing arthritis and his obesity.

Claimant obtained an IME to combat the authorized doctor’s opinion and based on Claimant’s IME the Judge ordered an Expert Medical Advisor (EMA) to break the tie.  The EMA sided with us, the E/C, and agreed with the authorized doctor that the major contributing cause was Claimant’s pre-existing arthritis.   While the EMA recognized the 2001 work injury as a contributing cause and agreed a total knee replacement is necessary, he testified that the major contributing causes were obesity and degenerative arthritis.

At trial, per s. 440.13(9)(c), the Judge accepted the EMA as presumptively correct and found the Claimant did not provide evidence to rule otherwise.  On appeal, Claimant argued that since the 2001 accident was just one cause of Claimant’s current knee condition (regardless if its a major contributing cause) that the major contributing cause standard (s. 440.09) should not apply. 

Remember in Bysczynski v. UPS, the First DCA found that if a Claimant suffers a pre-existing work injury and then the major contributing cause standard does not apply.  The E/C’s only remedy is apportionment with the previous E/C or seek a contribution claim against the prior E/C.  The problem arises when the prior E/C is no longer liable to Claimant like in my previous appeal, MedPartners/SRS v. Zenith.  Then it appears the current E/C has no recourse.

Unfortunately in my case, De La Cruz, the Court declined to comment on the reasoning behind their affirmation of the Judge’s order.  Therefore, I do not believe this ruling is controlling authority for E/C’s to apply.  In other words this case does not definitely say if an EMA finds the major contributing cause of a Claimant’s injury to be pre-existing injuries that are NOT occupational in nature then the Claimant loses.  But, the lower court’s ruling can be persuasive authority that can be used to try to convince a Judge of this argument.  You can find the trial court’s order to my case here.

Bottomline: when faced with a pre-existing occupational condition, look for other non-occupational causes, like obesity or arthritis or diabetes.  If an expert can steer the major contributing cause to one of those reasons you have a better chance of success.

Unless of course the First DCA is working on writing an opinion that definitively answers this question.

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