Major Contributing Cause

Nothing is as frustrating to an Employer/Carrier as when an employee suffers an accident and cannot explain how the accident took place.   This occurs often in slip and falls where the employee readily admits she does not know (or sometimes remember) how she fell.  She was walking down and a hallway at work one minute.  The next minute, she was on the ground and in pain.

Many E/C’s view these type of injuries as “idiopathic” and deny the claim because the accident could have occurred anywhere (at home or in public) and the fact it occurred at work was just a coincidence.  None of the physical aspects of the job caused the accident.

The problem is this thinking is wrong.  Even the definition of “idiopathic” is misinterpreted by many E/C’s.  All “idiopathic” means (as defined by Webster’s Dictionary)  “arising spontaneously or from an obscure or unknown cause.”   So, when an E/C cries out “idiopathic!” and denies the claim, all they are saying is they have no idea what happened.  And, that has no bearing to proving the claim is non-compensable.

The truth of the matter is that if no one (not even the Claimant) knows how an accident happened, the courts are going to favor the Claimant and award compensability.   And, we have a couple of new cases from the First DCA that proves this point. (more…)

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. . .


There is always confusion about section 440.20(4), otherwise known as the 120 day rule.  Per that statute, and E/C–if it is uncertain that a claim is compensable–can temporarily pick up the claim and with a good faith investigation determine if there is compensability. 

This way, if the claim is compensable the injured worker does not miss his benefits.  Yet, if there is evidence that the accident did not occur in the course and scope of employment or Claimant is not an employee or Claimant did not report the accident within 30 days, the E/C can still deny as long as it does so within the 120 days.

There is a notice requirement, in that the E/C must tell the Claimant, in writing, that is accepting compensability only for 120 days.  Per the statute if the E/C does not deny the claim within 120 days then it waives its right to deny compensability.

But, does the E/C waive its right to deny the claim for any other reason? (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…)

For many W/C claims, the hard part is differentiating where the physical injury ends and where the psychiatric injury begins.  Often, the pain associated with a severe work place injury will lead to certain psychiatric impairments: anxiety, depression, paranoia.  However, there are statutory limits to the exposure E/C’s have in claims with mental and nervous injuries.

In a seminal case, the First DCA sifted through the mental and nervous injury statute to decipher what happens when a Claimant suffers a psychiatric injury simultaneously with her physical injury. (more…)

The New York Times has an interesting piece on the growing litigation of former NFL players suing for Workers’ Compensation benefits in California as a means to increase their benefits for the alleged effects the sport has on their diagnosed dementia.  While I will not assume I have knowledge of California law, I would like to explore the possibilities of this occurring in the State of Florida.

Considering Florida has three NFL teams, one as old as 1966, there is a significant pool of potential Claimants this can affect.  First, we have to remember that professional athletes are excluded from the Workers’ Compensation Act, if they are performing their “athletic duties.”  A professional athlete can receive benefits if they are working in a non-athletic capacity, like at a team press conference.

But, there are professional sports teams in Florida who do decide to voluntary carry Workers’ Comp coverage.  If any one of our three NFL teams does do that, then this analysis would apply. (more…)

Last week I wrote about the Parodi decision which reinforces the self help section of chapter 440.  [see s. 440.13(2)(c)]   The main thrust of my post was that the stakes are now considerably raised with such a decision.

In that case the First DCA found that should Claimant receive unauthorized treatment on his own, and prove that the treatment was compensable and medically necessary, then the doctors providing said treatment could testify in Claimant’s case in chief. 

After talking with a mediator about the Parodi case, he declared that Claimant’s no longer need to use their IME anymore.  They can just go and find a doctor to provide treatment under a letter of protection (LOP).  While I see his point, I don’t think the situation is as dire as that for Employers and Carriers. (more…)

I’ve written about the 3-day rule and the 5-day rule located in section 440.13, but there is also the self help provision that Employer/Carriers must worry about.  Now the First DCA just reinforced  s. 440.13(2)(c), otherwise known as the self help provision, which allows Claimant to seek medical treatment on her own, if said treatment is later found to be compensable and medically necessary.

What this means is to deny a claim or deny medical benefits carries higher risks. (more…)

I know personally that many adjusters are both overworked and underpaid.  But, it is still important to be aware of the medical benefit “deadlines” that the W/C statute imposes on E/C’s.

A Carrier that fails to comply with these deadlines forfeits its ability to contest requested medical treatment, even if that treatment is not medically necessary. (more…)

Its fair to say that this is well established point of law in Workers’ Compensation, therefore the fact pattern should not one that is heavily litigated.  However, whenever a new adjuster  looks at the situation, the response is disbelief.

I am referring to the recommendation of a diagnostic test (an MRI, X-Ray, Cat Scan, etc.) by an authorized doctor for a body part, injury, or condition that does not seem related to the compensable accident.  A lot of times I will get a call from an adjuster asking me if they should authorize a diagnostic test that is recommended by an authorized treater for a body part that Claimant did not report as an injury.   Many of those adjusters are surprised when I tell them they have to authorize it.  

And, I don’t blame them for that reaction. (more…)

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