If you get injured on the job in Florida, you may be wondering what effect if any, a prior condition may have on your benefits. This is actually a threshold question, because the employer/carrier, (“E/C”), may not have to pay you anything depending on the impact of that prior condition. By way of background, in Florida there are two types of benefits that you may be entitled to if you have a compensable work related accident. The E/C may be liable for your lost wages and future lost wages as a result of your disability, and inability to return to earning your pre-injury wages; as well as medical benefits which include treatment, prescriptions, devices, modifications to home and or car, among others. Workers’ Compensation does not compensate for pain and suffering, or other damages that you may seek in a personal injury suit.
In workers’ compensation, the E/C is only responsible for disability and treatment if the work-related injury is the major contributing cause of your resulting disability and need for treatment. Major contributing cause means that the work-related injury is the cause of more than 50% of your resulting disability and need for treatment. Fl. St. 440.09(1). In fact the employer does not need to pay any compensation or any benefits even if you otherwise suffered a compensable injury arising out of and during the course of your employment if the accident is not the major contributing cause of your resulting injuries. The major contributing cause must be demonstrated by medical evidence only. In order for a major contributing cause to even be an issue, there must be more than one underlying cause of your disability and need for treatment. If the compensable injury is the sole cause of your disability and need for treatment, then there is no reason to worry about the issue of major contributing cause. Major contributing causes only come into play if there is something other than the compensable injury, which when combined with your compensable injury, impacts your disability and need for treatment. For example, if you had a pre-existing condition that is then aggravated by a subsequent work-related injury but the pre-existing condition is more than 50% of the cause of your resulting disability and need for treatment; then the carrier would not be liable for anything. The claim would not be compensable. To clarify another point, this inquiry is not limited to pre-existing conditions but can also include subsequent injuries, or conditions occurring after the workplace accident.
Let’s say that the work- related injury is more than 50% of the cause of your disability and need for treatment. This means you will not have a major contributing cause problem when it comes to compensability. However, that doesn’t necessarily mean that you are home-free. If at some point down the line, your pre-existing condition worsens and contributes more than 50% to your need for treatment and disability; then the E/C may be off of the hook for any benefits. But, your claim would still be compensable. This can be confusing because on the one hand, the E/C is liable for the claim as it is a compensable claim, but at the same time would not be liable for a particular treatment or benefits while the pre-existing condition was causing more than 50% of your disability. This shift in liability can occur when there is a break in causation. You can have a compensable claim because the work-related accident was the major contributing cause of your injuries, and then later due to a break in causation, the accident is no longer the major contributing cause. Your claim would still be compensable, but the E/C may not be liable for benefits, at least until there is another shift in causation. Teco Energy v. Williams, 234 So.3d 816 (Fla 1st DCA 2017).
The Court has clarified that in order to qualify as a pre-existing condition, there needs to be medical evidence demonstrating a need for treatment independent of the work-related injury, either before or after the injury. Osceolo v. Pabellon-Nieves, 152 So.3d 733. (Fla.1st DCA 2014).
Now that we’ve discussed major contributing causes, let’s turn to another issue that can come in the way of your benefits. Even if you have a compensable accident and more than 50% of the liability is being caused by a workplace accident, the apportionment can limit your benefits.
Apportionment is the concept of splitting the responsibility of the cost between your pre-existing condition and the work-related injury. Fl. St. 440.15. Practically speaking what does this mean? If the work-related injury and a pre-existing condition combine which results in your disability and need for treatment; then you will only get reimbursed or covered for that portion of the injury that relates to the workplace accident. You will then need to pay for treatment and cover any lost wages attributable to your pre-existing condition. The concept of apportionment applies when a medical doctor renders an opinion as to what portion of the disability is related to a pre-existing condition versus the work-related accident. So, apportionment requires a medical opinion as to the percentages of causation.
For example, a person who had a pre-existing shoulder condition and later suffered an accident resulting in a tear of his rotator cuff requiring surgery, faced an apportionment challenge. The E/C argued that it should only be liable for the aggravation of the shoulder condition caused by the workplace accident, which was roughly 60% of the overall problem. However, due to the E/C accepting the entire shoulder as compensable, the court indicated that it did not even have to address major contributing cause issues or apportionment. Had the E/C identified that there was a pre-existing condition, and accepted compensability only for that portion caused by the work-related injury, the result would have been different and apportionment would likely have applied. Sullivan v. NUCO2, 308 So.3d 659 (Fla. 1st DCA 2020).
In another example, a worker had underlying pre-existing conditions such as obesity, heart disease, tobacco and alcohol use, hypertension and then suffered a heart attack and died after a work-related leg injury. In such instance, there was no compensable accident because the pre-existing conditions were the major contributing cause of the heart attack and resulting death of the employee and not the leg injury. Again, pre-existing conditions are considered personal in nature and unrelated to the workplace. Mangold v. Rainforest, 675 So.2d 639 (Fla. 1st DCA 1996).
In another instance, an injured worker was engaged in a heavy physical labor job for several years, and after doing heavy lifting and bending suffered pain in his legs and hip. He was told that the pain was related to a back condition. He was diagnosed with lumbar stenosis which was found compensable under a repetitive trauma theory based on repeated heavy lifting and bending while working for the employer for more than 20 years, as opposed to a specific accident. The judge found that the repetitive trauma was the major contributing cause of his stenosis. There was also a pre-existing herniated disc but the judge did not find that it was compensable because there was no medical evidence relating it to any specific event. A doctor testified that it was a combination of the herniated disc and the stenosis that caused the disability. The E/C argued that the claimant could not and did not establish that the stenosis was the major contributing cause of the disability. The issue was whether the stenosis was pre-existing or was a compensable injury. In order to prove repetitive trauma, the injured worker must prove either a prolonged exposure to a condition or activity or, the cumulative effect of which is injury or aggravation of a pre-existing condition, and that he or she was subjected to a hazard greater than that to which the general public is exposed. Otherwise, the injured worker needs to show a series of occurrences leading to injury. This can be established by lay testimony, medical evidence, or both. Interestingly, the legislature refused to interpret the term “pre-existing” as meaning related to a certain period of time, but rather something that is personal to the employee and something which the worker brings to the workplace; as opposed to a condition or disease which arises out of the employment. Louisiana Pac.Corp. v. Harcus, 774 So. 2d 751 (Fla. 1st DCA 2000). The activities of the injured worker performing heavy manual labor at a sawmill for 24 years lifting, pulling, and bending, met the requirements for repetitive trauma. Therefore, the stenosis was not considered pre-existing, but rather was the compensable condition. The Court went on to note that apportionment prevents employers from bearing the cost of compensating employees for conditions that are entirely personal, and the normal progress of a disease or condition unrelated to the workplace accident.
However, apportionment is not always appropriate even if there is a combined disability from the workplace and a pre-existing condition. If a pre-existing condition becomes aggravated or accelerated by a workplace accident, then the resultant disability would be compensable and the carrier would be liable for any resulting aggravation due to the compensable condition combined with the pre-existing condition; but only if the pre-existing condition was not producing any disability at the time of accident, nor was expected to naturally progress to produce any disability on its own. For example, if the injured worker suffered a back injury at work but had pre-existing arthritis of the back, which was not disabling and was not expected to produce disability had the work-related accident not happened; then apportionment would not be appropriate. The reason being is that the work-related accident aggravated the pre-existing arthritis and caused the disability. So even though arguably the disability was a combination of the arthritis and the accident, there would be no apportionment in this instance. Evans v. Florida, 196 So.2d 748 (Fla.1967).
To clarify this point further, when a work-related accident aggravates a pre-existing condition then it will be compensable if disability resulted directly and solely from the accident and would have occurred even if there was no pre-existing condition; or if the disability resulted from the acceleration or aggravation caused by the accident. However, apportionment would be appropriate only to the extent that the pre-existing condition either was disabling at the time of accident and continued to be so, or it was producing no disability at the time of accident but through its normal progression became disabling. Accordingly, if the resulting disability was from the normal progress of the disease and would have existed anyway had the accident never occurred, then there would be no compensability, and thus no liability on the part of the E/C.
To demonstrate, where an injured worker suffered a pre-existing hernia which caused him no problems at work and no disability, but then he got into a fight at work injuring his hip; his hernia became aggravated and required surgery. This was a compensable injury. The Court found no apportionment could apply here because the hernia was not disabling at the time of the accident,and would not have become disabling through the normal progression of time. Delgado v. Blanco, 606 So.2d 658 (Fla. 1st DCA 1992).
It is the E/C’s burden to raise apportionment as an affirmative defense. When the injured worker has a pre-existing, non-disabling and asymptomatic condition at the time of the work-related accident, the carrier must prove that there is a portion of the current disability attributable to the normal progression of the pre-existing condition which would have occurred in the absence of the work-related accident. It is this portion of the disability that can then be apportioned. Such inquiry will include whether the injured worker was treating for the pre-existing condition prior to the accident, whether the condition was symptomatic, or whether it limited the worker’s activities. Tejada v. Collection, 594 So.2d 340 (Fla. 1st DCA 1992).
As demonstrated in this article, if you have a pre-existing condition or injury and you later suffer a work-related accident there may be a challenge to the compensability of your workers’ compensation claim. Even if your claim is compensable, there could be other issues that may limit your entitlement to benefits. An experienced Workers’ Compensation Attorney can help you navigate the system and ensure that you not only obtain the benefits that you are entitled, but help you maximize your benefits. If you have suffered a work-related injury, contact us at the LaBovick Law Group to see what benefits you may be entitled to. We provide free consultations where we will review the facts of your case to determine the right course for you. Call us today at (561) 625-8400 for your free evaluation.
