Apportionment of Florida Workers Compensation Not Allowed in Many Cases

In many Florida workers compensation cases an employee is injured at work and the injuries involve parts of the body which have suffered prior conditions,  injuries, disease or anomalies.

Florida Statute 440.15(5)(a) and (b) provide:

SUBSEQUENT INJURY.—
(a) The fact that an employee has suffered previous disability, impairment, anomaly, or disease, or received compensation therefor, shall not preclude her or him from benefits, as specified in paragraph (b), for a subsequent aggravation or acceleration of the preexisting condition….

(b) If a compensable injury, disability, or need for medical care, or any portion thereof, is a result of aggravation or acceleration of a preexisting condition, or is the result of merger with a preexisting condition, only the disabilities and medical treatment associated with such compensable injury shall be payable under this chapter, excluding the degree of disability or medical conditions existing at the time of the impairment rating or at the time of the accident, regardless of whether the preexisting condition was disabling at the time of the accident or at the time of the impairment rating and without considering whether the preexisting condition would be disabling without the compensable accident. 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. As used in this paragraph, “merger” means the combining of a preexisting permanent impairment or disability with a subsequent compensable permanent impairment or disability which, when the effects of both are considered together, result in a permanent impairment or disability rating which is greater than the sum of the two permanent impairment or disability ratings when each impairment or disability is considered individually.

In an attempt to interpret a confusing, contradictory and convoluted piece of legislation, the 1st DCA  has ruled  the apportionment of temporary indemnity benefits, permanent indemnity benefits, and medical benefits is governed by distinct clauses contained within section 440.15(5)(b). Specifically, the first sentence of section 440.15(5)(b) addresses apportionment of temporary indemnity benefits, in the clause indicating that “only the disabilities . . . associated with [the] compensable injury shall be payable under this chapter, excluding the degree of disability . . . existing at the time of the . . . accident.” The second sentence of section 440.15(5)(b) addresses apportionment of permanent indemnity benefits, and requires evidence of a “permanent impairment or disability attributable to the accident or injury” and an “anatomical impairment rating attributable to the preexisting condition.” Finally, the third sentence of section 440.15(5)(b) addresses medical benefits and provides for payment “by apportioning out the percentage of the need for such care attributable to the preexisting condition.” see Staffmark v. Merrell, 43 So. 3d 792, 795-96 (Fla. 1st DCA 2010)

In Staffmark v Merrell, 43 So3d 792 (Fla. 1st DCA 2010) the court found “Section 440.15(5)(b) is applicable only when a claimant’s injury is the result of an acceleration or aggravation of a ‘preexisting condition.’” citing  Mullins v. 7-Eleven, Inc., 5 So. 3d 35, 37 (Fla. 1st DCA 2009).  The court noted that  the term “preexisting condition” is not specifically defined in the apportionment statute. The court relying on Pearson v. Paradise Ford, 951 So. 2d 12 (Fla. 1st DCA 2007) and  Pizza Hut v. Proctor, 955 So. 2d 637 (Fla. 1st DCA 2007) held that if the preexisting condition is caused by an earlier accident Section 440.15 (5)(b) doe not apply.  The court stated the underlying purpose of the Workers’ Compensation Law is to place on industry the burden of paying for all injuries and damages of occupational cause.  Rather than claiming non-compensability in cases where the underlying disability was from an earlier industrial accident, a workers compensation carrier may instead find a remedy in section 440.42(4), Florida Statutes, which governs the division of liability between employers where two or more workplace injuries combine to cause the claimant’s need for benefits.

In Jewell v. Gevity HR and Chartise Insurance, (Fla. 1st DCA, Slip Opinion filed March 23, 2011) the court held that to prove “merger” under F.S. 440.15(5)(b) the insurance company must establish that an “impairment or disability”  preexisted the impairment or disability caused by the industrial accident.  The JCC did not find an aggravation or acceleration of a preexisting condition, but relied upon the treating neurosurgeon’s opinions to find merger.

The JCC’s decision tells us Jewell had asymptomatic “preexisting conditions”   At trial the JCC noted the only medical evidence in the case consisted of the medical records and deposition of Dr. Mark Gerber, M.D., the authorized treating neurosurgeon. When Dr. Gerber initially evaluated the Claimant on April 4, 2007, he noted that Claimant reported a history of being symptom free in her low back until the motor vehicle accident on January 30, 2007.  He differentially diagnosed lumbar radiculopathy, grade one L4-5 spondylolisthesis with severe stenosis, and L3-4 stenosis. He also discovered at a later date, May 23, 2009, that Claimant was afflicted with bilateral pars defects, which are congenital. Dr. Gerber opined that the spondylolisthesis, the stenosis, and the pars defects pre-existed the compensable motor vehicle accident. He believed that surgery in the form of a decompression of the spinal canal atL3-4 and L4-5, with a fusion at L4-5 was reasonable and medically necessary to treat the pain and disability that  existed in Claimant’s back since the compensable motor vehicle accident, but that 40% of the need for the is surgery was attributable to the preexisting asymptomatic back condition and 60% was directly caused by the injury sustained in the accident. The JCC found that Dr. Gerber seemed clear in his opinion as to the degree of the apportionment and there was no evidence that the Claimant would need the surgery, based on the injury she sustained in the accident alone, without the preexisting condition. see http://www.jcc.state.fl.us/jccdocs20/FMY/Lee/2010/001253/10001253_229_07012010_03314117_i.pdf

The 1st DCA overturned the JCC in Jewell noting “In this case, although there was evidence Claimant had preexisting conditions, there was no evidence Claimant had a preexisting permanent impairment or disability. Consequently, there could be no merger.”

After wading through Jewell and Staffmark, there appear to be five current rules:

1  Apportionment of temporary indemnity benefits apportions or excludes “disability” . . . all ready in existence at the time of the . . . accident. see Staffmark

2.  Apportionment of permanent indemnity benefits requires evidence of a “permanent impairment or disability” attributable to the  current accident and injury and an “anatomical impairment rating” attributable to the preexisting condition. see Staffmark

3.  Medical benefits can be apportioned by apportioning out the percentage of the need for care attributable to the “preexisting condition”. see Staffmark

4.  If a portion of the payment of temporary indemnity benefits or permanent indemnity benefits or  medical care results from an earlier industrial  injury F.S. 440.15(5)(a)and(b) does not apply. see Staffmark

5.  If the carrier is claiming “merger” of the industrial accident and injuries with a  “preexisting condition” it must prove a  preexisting permanent impairment or disability. see Jewell

The term “preexisting condition” in 440.15(5)(b) refers to the term “preexisting condition” used in (5)(a).   The term “preexisting condition” used in (5)(a) refers to “previous disability, impairment, anomaly. or disease”. A  preexisting condition that constitutes a “disablity”  or “impairment” seems straight forward.  “Disability” means incapacity because of an injury to earn the same or any other employment the wages which the employee was receiving at the time of injury see F.S. 440.02(13). The term “Impairment” is not specifically defined in Chapter 440 but “permanent impairment” means any anatomical or functional abnormality or loss determined as a percentage as a whole, existing after the date of maximum medical improvement, which results from the injury. see F.S. 440(22).

The Jewell and Staffmark cases raise substantial questions about whether apportionment applies to individuals with normal degenerative changes who are completely pain free and without limitations before they are injured on the job.  They are obviously  not “impaired”  with functional abnormality or “disabled”.  This suggests two ways to establish aggravation or acceleration of a preexisting condition warranting an apportionment, by proving an “anomaly” or “disease”.

Merriam Webster defines “disease” as:

: a condition of the living animal or plant body or of one of its parts that impairs normal functioning and is typically manifested by distinguishing signs and symptoms : sickness, malady

To be a “disease” the condition must “impair functioning” and be manifested by “signs and symptoms”.

Merriam Webster defines an “anomaly” as:

Irregularity, something different, abnormal, peculiar, or not easily classified

Normal degenerative changes by definition cannot be “abnormal”.

Injured workers with normal asymptomatic degenerative changes or naturally occurring processes that do not impair and disable before the industrial accident and injuries appear to be beyond the apportionment provisions of F.S. 440.15(5)(a) and (b) since asymptomatic degenerative changes and naturally occurring processes do not cause an impairment, disability, disease or anomaly as the terms are commonly defined and used in F.S. 440.15(5)(a)and(b).