Apportionment


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. . .

(more…)

Since the Staffmark decision, the W/C legal community continued to ask questions about the nature of pre-existing occupational injuries and the ability for Employer/Carrier’s to deny a claim on major contributing cause or take an offset with apportionment.

For example, what if a Judge believes a pre-existing occupational injury is not a contributing cause (MCC) at all and therefore still utilizes the major contributing cause standard?  Or, in this most recent case, what if a Claimant’s pre-existing occupational injury was never accepted or determined to be compensable?  Does apportionment (and MCC) apply or is the E/C out of luck?

More after the jump. . . (more…)

(Consider this post as my scary Halloween article for E/C’s.)

This issue is hotly debated now among Carriers.  What do you do when an authorized doctor requires Claimant’s non-compensable condition be treated before the doctor will treat the compensable injury?   For example, the authorized W/C surgeon will not perform surgery on the compensable back injury until a doctor clears Claimant’s cardiac condition. 

Does the E/C have to authorize cardiac care for a non-compensable condition just so the doctor can treat a compensable lumbar condition? 

The unfortunate answer is “yes.” (more…)

Few areas of the law are as confusing as major contributing cause.  Workers’ Compensation is the only area of personal injury law where the “eggshell plaintiff” does not exist.  In all other areas, the law takes the claimant “as is,” even if they have pre-existing conditions. 

In W/C, we divy up the causes of Claimant’s disability.  If the more than 50% is related to the compensable accident, then the E/C pays.  If not, then–in theory–the E/C does not pay.   (The flip side of this is apportionment, which I wrote about prior.)

Ever since 1993, when the Legislature first introduced the major contributing cause standard, the courts have honed this section of 440 and redifned.   In turn, the Legislature did their own honing.  All the while, Claimant’s and E/C’s scratch their heads.

Well, now its time for another head scratcher. . . (more…)

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. (more…)

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.

(more…)