Pre-existing Occ. Injury must be Compensable to Bar Apportionment

Tuesday, February 7, 2012 | 0

Since the Staffmark decision, the workers' compensation legal community continued to ask questions about the nature of pre-existing occupational injuries and the ability for employer/carrier’s (E/C) 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 major 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?

In Newick v. Webster Training Center, the claimant appealed a lower court decision where the judge determined that the E/C could apportion out claimant’s benefits based on a pre-existing condition. The claimant’s contended that his pre-existing injuries were occupational in nature. Therefore, the E/C could not apportion out his benefits, but could only seek contribution against his prior employer.

The problem with the claimant’s argument was she never reported her prior work injuries and did not file a claim for benefits.  Instead, she paid for treatment with cash or personal health insurance. At trial, the judge selected an expert medical adviser (EMA) to decide the issue of major contributing cause. The EMA opined that the compensable accident contributing to 65% of the claimant’s current need for surgery while her pre-existing injuries contributed 35%.

The E/C was still responsible for providing continuing benefits, but could take a 35% on those benefits. Despite the claimant’s arguments that the pre-existing injuries were occupational in nature, the 1st District Court of Appeals agreed with the E/C as well.The point being is that to follow claimant’s argument would render S. 440.42(4)–the contribution statute–meaningless. Remember, if the claimant has a pre-existing occupational injury, then the E/C can seek reimbursement from the prior E/C.

However, the apportionment statute, S. 440.15(5)(b), considers only compensable accidents. In the Newick case, the claimant never obtained a compensable status for pre-existing injuries. Therefore, the E/C would never have the remedy of contribution against claimant’s prior E/C.

This logic by the court is flawed, though. Don’t forget my case, Medpartners v. Zenith. In that case, the 1st DCA found that an E/C No. 2 could not seek contribution from the claimant’s prior E/C No. 1 if the statue of limitations passes between the claimant and E/C No. 1. The court found that since E/C No. 1 has no liability towards the claimant then it has no liability towards E/C No. 2. So in a situation where E/C No. 2 obtains apportionment against the claimant and the pre-existing injuries are occupational from working with E/C No. 1, then E/C No. 2 cannot get any relief if the statute passes between E/C No. 1 and claimant ... or, if claimant and E/C No. 1 execute a settlement agreement.

While this is a positive decision for E/C’s, I am still looking for clarity regarding the pre-existing occupational injury vs. liability issue of prior E/Cs.

WorkCompCentral subscribers may download the Newick decision by clicking the case title in the sidebar.

Michael Rabinowitz is a workers' compensation defense attorney with Banker Lopez Gassler in Tampa. This column was reprinted with his permission from his Workers' Comp Corner blog.