Acceleration of the Major Contributing Cause Standard, 2

Sunday, May 22, 2005 | 0

The following is the second in a two part article series that is an adaptation of a Florida State Bar approved continuing education course presented by attorney H George Kagan. The actual State Bar course outline has been formalized into a narrative article for the ease of reading purposes. This first part presented an overview of the Major Contributing Cause standard and can be read by clicking on the article title in the sidebar at right. This second part of this series will review problems, concerns and statutory inconsistencies, as well as Mr. Kagan's Appendix where he provides some personal perspective to the issues.

Acceleration Or Aggravation Of Personal, Preexisting (Non Mental/Nervous) Injury Or Disease And The "Major Contributing Cause" Standard

By: H. George Kagan

Part Two.

F. Special notes regarding problems, concerns and (possible) statutory inconsistencies:

1. There is a significant fault line between concept known as "apportionment", still suggested by the language of section 440.15(5), versus the "sudden death" cessation of all responsibility implied by section 440.09, post 10/01/03. The new and bold language (literally) of section section 440.09, and 440.09(1)(b), reproduced above (under 1, B and 1, D) seem clearly to drop all responsibility once a line on a graph represented by the employment contribution (aggravation or acceleration) of preexisting conditions crosses and drops below the degree of contribution made by preexisting conditions (e.g. "only to the extent that the injury arising out of and in the course of employment is and remains more than fifty percent responsible..." However, section 440.15(5)(b) still suggests a pro rata assessment of both the impairment rating and medical benefits-- apportioning out the percentage or "degree" these are attributed to the preexisting condition. In fact, there is an internal friction within the language itself in that "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."

2. Allocation of responsibility in section 440.42(8) disputes between carriers involving MCC cases: the seeming purpose of alleviating a subsequent employer's responsibility where employment contribution to a new injury is less than the contribution made by a preexisting (in this case, workers' compensation) injury has been made more complex via Handy-Man v. Weinstein, 802 So. 2d 1186 (Fla. 1st DCA 2002), construing an entirely different test than MCC as the present law where two employers with two different dates of accidents are involved. First E/C contributed seventy-five percent and second, twenty-five percent, suggesting the second might defend on the basis of MCC, but in construing section 440.42, the Court allowed the first employer to bring in the second to demand contribution. Parenthetically, there was no MMI after the first accident which would seem a good basis for the ruling except for the fact there was an MMI after accident number one in a case relied on by the majority, B&L Services v. Coach, 791 So. 2d 1138 (Fla. 1st DCA 2001). In essence the court construed section 440.42 as having been unchanged since before 1994 and therefore still operating on a separate track unaffected by MCC changes. As the dissent pointed out, it is a very odd construction especially when it results in completely different templates for liability.

G. Policy Changes: an idiosyncratic longview;

(1) At the end of the day, Part I; Eggshell skull and all? Does the employer still take the employee as it finds him or her (i.e., employer hires employee along with all preexisting problems that come with the employee, and if the employee is predisposed to particular injury on slight provocation, employer "bought" the problem)? It is unlikely this venerable carryover from tort law survives any longer given the MCC enactment in 1994 with even greater emphasis in 2003. Previously, the employee got paid and the employer got reimbursed (Special Disability Trust Fund). Now, the employee is only partially- or not at all--compensated in accord with the principals set forth above.

(2) At the end of the day, Part II: Perceived Inclinations of Bench, Bar and Physicians vis-a-vis "The Policy" Change. The author perceives ingrained, almost intuitive inclinations against implementation of the policy changes regarding MCC in the field. If the perception is accurate, then the consequence, for the defense, is the LCC TRAP , to-wit, where the worker goes into work seemingly sound (notwithstanding preexisting conditions), and exits on a stretcher, so to speak, there is a powerful tendency to portray anything that interceded as the "MCC," whereas it may only have been the LCC, i.e., Last Contributing-and sometimes- Least Contributing Cause. In short, the "but for" test--or the "straw that broke the camel's back" test-which takes us back full circle to defacto reinstallation of the "take the employee as you find the employee" doctrine.

The author suggests there is perhaps one overarching rule that can describe most historic efforts to balance too liberal an application of the "take the employee" rule (whereby only a scintilla of employment contribution doesn't seem quite right as a basis for liability)-against the "goes in healthy-comes out on a stretcher" syndrome (where denial often doesn't seem quite right either). The suggested rule, which can be seen at the heart of almost all tests for "arising out of"-from the "Victor Wine rule" to the stalker in Srother v. Morrison's Cafeteria, 383 So. 2d 623 (Fla. 1980) seems to have been (and may still be):

Where an employee carries a personal risk of harm that is the same at home or at work and symptoms of that risk manifest themselves at or in some relation to work-the employment must make a meaningful contribution to that risk of harm for aggravation or acceleration to arise out of the employment.

Of course, the key word is "meaningful" and the suggested definition is significant and substantial (i.e., versus insignificant and insubstantial)-and it is the author's sense that once a number somewhere in the neighborhood of twenty-five to thirty-three and a third percent is sensed-folks tend to want to compensate. Maybe the new and highly particular language highlighted in this topic will make a difference-and physicians will find legitimate means of coming up with or disputing the magic numbers-or maybe not. We will see.

(3) At the end of the day, Part III - Battlefield Detritus: Attached for illustration is a fragment from a brief involving a claim in which the JCC awarded benefits where Claimant (asymptomatic before the accident but found, after, to have had preexisting, congenial liver disease at Stage 4, i.e., cirrhosis), was scratched at work resulting in an admittedly severe infection. His immune system's efforts to combat the infection essentially overtaxed his greatly depleted liver function, resulting in need for liver transplant. In other words-walked in seeming fine; enjoyed fishing, etc., and then-carried out on a stretcher! Skillful lawyering resulted in the finding the scratches and resulting infection were the MCC of liver transplant notwithstanding the fact there was no cure for cirrhosis, and transplant (or death) was the only-and inexorable-endpoint for the disease. Skillful Appellate lawyering warded off the undersigned's efforts to unseat the result. Obviously, nothing so complex (32 volume transcript!) can be portrayed fairly and accurately in either this advocates present summary or a small excerpt from the brief-but the undersigned attaches an excerpt of his argument illustrating what is humbly submitted as a possible application of what he (alone, thus far) characterizes as the "LCC" trap, and part of his (failed) argument in confrontation of same. See Appendix.

APPENDIX

By no stretch of an advocate's imagination can the legislature have intended, by its use of the definite article "the" to modify the phrase "major contributing cause" (and within reasonable medical certainty) that a "straw that broke the camel's back" scenario would suffice. To do so would allow sufficing as "the" major contributing cause that which might "in substance" be "the least" contributing cause, or simply the "last". If E/SA concedes on the one hand that the employment contribution here (infection/septic shock) was more than just a straw--and it probably was--that is not the equivalent of a concession, on the other hand, that same constituted "the" major contributing cause of Claimant's need for transplant. Claimant's pre-existing "severest" pathological level of irreversible and untreatable liver disease was the major contributing cause of his need for a transplant. *** Getting back to the word "acceleration," the following metaphor helps demonstrate why such term is apt, but not in the manner intended by the JCC.

The state of Claimant's liver damage and impaired liver function on the "day before" his scratches can be analogized with an automobile having inadvertently been driven long past the point it's "oil warning" light should have come on, but owing to the nature of things (i.e., this "silent killer" of a disease), the light wasn't working. After yet another uneventful, pleasant trip of a couple of hundred miles or so, back from say, "fishing"--the automobile moves out smartly to pass a truck lumbering along a gentle curve, which requires, of course, more engine RPMs, etc. However; suddenly looming into sight is oncoming traffic! A maximum burst of acceleration is needed to return to the correct lane--but just as suddenly; the car cannot complete the pass for the engine has seized up! The driver is frozen but fortunately, the passenger (a physician) jerks the wheel, guiding the car onto the shoulder. The car is "saved," for the moment. The car's engine was no longer capable of doing that which is occasionally demanded of cars' engines; maximum acceleration. Moreover, the engine became ruined during the attempt, and on inspection, it could be seen the accumulating damage was of long standing. If the car is to remain viable, the engine must be replaced.

The point of the above "acceleration" metaphor should be obvious: we can say all we want about how uneventful were the miles previously driven, or the pleasures of the fishing hole, or that the slow moving truck was a GMC pick-up built in Muskegon in 1989, bearing expired Tennessee plates; or even that it was driving too slow for prevailing conditions whereas the oncoming car was speeding; we can go on about how not a single mechanic who had looked under the hood previously had discovered the oil situation! Compared with the countless things we might say, one thing we cannot say is this: the truck was "the major contributing cause" of the engine's seizing, or its need of replacement. The truck; the passing maneuver; "flooring it"--these may have been the last contributing causes; possibly "major" causes, but in substance, none was "the" major contributing cause of engine replacement--despite the superficial appearance of things. Insidious decline of engine oil quality leading finally to severely deteriorated lubricating capability was the major contributing cause of seizing and the ruination of the engine, necessitating replacement. All else is rhetoric in the guise of substance.

by H. George Kagan of the MKRS lawfirm. George can be reached by e-mail at GeorgeK@mkrs.com, or phone at 800.761.MKRS.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management. WorkCompSchool hopes to have this course, in addition to other courses authored by Mr. Kagan, in its curriculum shortly for MCLE and other professional continuing education credit purposes.