Major Contributing Cause as a Defense

Monday, February 14, 2011 | 0

Michael Rabinowitz
Banker Lopze Gassler

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 employer/carrier 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, claimants and E/Cs scratch their heads.

Well, now its time for another head scratcher. . .

In Bysczynski v. UPS, claimant suffered a compensable neck injury in 2005. The E/C accepted the claim and provided cervical fusion surgery. Claimant returned to work with no complications.

In 2007, claimant had a second neck injury. The E/C accepted this as compensable, but when the same doctor recommended another cervical fusion surgery the E/C denied the claim on the grounds that the major contributing causes was the first 2005 injury. The parties sought an expert medical adviser’s (EMA) opinion to resolve the dispute. The judge chose the EMA and posed the question of what was the major contributing cause for the need for a second cervical fusion.

he EMA opined that the 2005 accident excellerated degenerative changes in claimant’s neck and was therefore the major contributing cause, not the most recent 2007 accident. The judge accepted the EMA’s opinion and ruled in favor of the E/C. Claimant appealed and the 1st District Court of Appeals reversed.

The reasoning, per prior case law, was that the Judge cannot apply the major contributing standard when the pre-existing injury is a result of a work accident.   This is because of the 33%/33%/33% scenario. For example if a doctor finds that the major contributing causes of a claimant’s disability is 33% the first accident, 33% the second accident, and 33% degenerative changes, the claimant would never get an E/C to pay for his injuries. None of those causes rises above 50%, so claimant loses against both E/C’s.

Instead, the 1st DCA found that in scenarios like this, the two accidents are apportioned and each E/C has to pay their percentage of responsibility.  This is fine and dandy when you have two separate E/C’s (or one E/C for two accidents, like in the Bysczynski case) who each have definitive liability. In those cases, one of the E/C’s can pay 100% of the claim and then seek contribution under Section 440.42 from the other E/C for the percentage of liability. 

The problem arises in scnearios like my first appellate win, MedPartners/SRS v. Zenith, where the statute of limitations runs against the first E/C and then the second E/C pays for the entire claim. In my case, the 1st DCA ruled that if claimant cannot bring a claim against the first E/C, neither can the second E/C, the reason being the first E/C has no longer expects liability for the claim.

So, according to my case and the Bysczynski case, the E/C has no course of action if the major contributing cause is a prior W/C accident.  What about a scenario where a claimant settles his first accident with E/C 1, then has an accident with E/C 2, but the major contributing cause is the first accident?  It looks like E/C 2 has no choice but to pay it. That doesn’t seem fair to E/C 2. And, if we were to flip the results where E/C 1 still has liability, it wouldn’t seem fair to E/C 1 and the whole notion of settlements would be moot.

What these rulings do is create a scenario whereeEmployers are worried about hiring employees with prior W/C injuries (a shaky scenario involving the American with Disabilities Act) and employers who are going to be vigilant about requiring voluntary resignations when the settle with claimants. I understand the root of the major contributing cause standard, but the way it is applied makes no sense to E/C’s or claimants.

Maybe its time  to reconsider the entire standard altogether and/or create something new and different.

WorkCompCentral subscribers can read the opinion by clicking here: http://www.workcompcentral.com/pdf/2010/misc/Bysczynski12282010.pdf.


Michael Rabinowitz is an attorney for the Banker Lopez Gassler workers' compensation defense firm in Tampa. This column was reprinted with his permission from his blog, http://workerscompblog.wordpress.com/