The Kelly Case and Manifestations - an Analysis

Sunday, April 24, 2005 | 0

Earlier this month the Florida First District Court of Appeals clarified the 1994-2003 standard of proof for "manifestations" and other alleged sequelae of an original, compensable injury in A. Duda & Sons, Inc. v. Kelly , Case No. 1DO4-1279 (Fla. 1st DCA 4/7/05).

WHAT Has Happened: The District Court acknowledges prior confusion (generated by its seemingly conflicting older Drewno and Mangoldcases) regarding the standard of proof for complications and such, allegedly flowing from an original, compensable injury ( e.g.; psychiatric injury, limp creating "opposite" knee pain, aggravation of preexisting problems such as high blood pressure, diabetes, etc.).

* From now on, the rule is this: Where the condition "naturally or unavoidably results from" compensable injury, it is a "manifestation" under section 440.02(18) (Fla. Stat. 2001, since renumbered (19)) [The Court used as an example a "depressive disorder" but perhaps a clearer example would be "post-traumatic stress disorder ", i.e., one literally following "trauma"]. Such "manifestations" continue to require only a showing of "causal connection," the same standard of proof that governs any other element of proof (within reasonable medical certainty).

* However, where the allegedly "resulting" condition constitutes either a new, "subsequent" injury (section 440.09(1)(a)) ( e.g., heart attack suffered in the hospital several days after a trauma; damage to an opposite member from overuse of an injured member) - - or - - "aggravation of a preexisting condition" (section 440.09(1)(b)) ( e.g., flair up of preexisting cardiac symptoms, loss of diabetes control, etc.), then the standard of required proof is raised, i.e., the compensable injury must be THE "major contributing cause", which is a tougher burden.

ANALYSIS of What Has Happened: This is definitely a helpful clarification. Although this help comes a little late (it governs only pre-2003 claims: for post 2003 claims, even "manifestations" require "MCC" per section 440.09(1)) , these kinds of problems often come up years after occurrence in major claims, so it is still "timely," helpful news.

* The Good News. Kelly raises the bar of proof for many of the kinds of things often alleged to result from compensable injury in major and long-lingering older (pre 10/1/03) cases.

* The Less Good News. The most obvious cases can be put into one of three categories fairly easily, but in a large number of claims it will be difficult to differentiate what is a "manifestation" (per the definition above) versus new "subsequent" injury or aggravation. The example given in the opinion, "depressive disorder," is ok if everyone agrees the "depressive disorder" is a "manifestation", but it is not often so simple. A clearer example might be the development of a nervous tick, for instance, as an alleged psychiatric consequence or injury, i.e., this would more clearly be an alleged "new injury" than a "manifestation that flows 'naturally' and 'unavoidably' from" compensable injury , and therefore subject to the higher burden of proof.

BOTTOM LINE For The Adjuster: New distinctions to put to the treating physician when either Claimant or physician attempts to connect something to the accident that may or may not be connected!

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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