By: Christopher Mossallati, Associate, Fort Myers

Over the past several years, carriers have had to significantly adjust their decision-making in cases involving prior work injuries and major contributing cause (MCC). The First DCA rendered an opinion in Pearson v. Paradise Ford, that held a prior work-related accident cannot serve as a basis for an MCC defense. Recently, a JCC has taken a new look at this standard, and entered an order contrary to Pearson, in Dove v. Bennett Auto Supply/Travelers Insurance, OJCC Case No. 15-021286KFO. This case has already been appealed; however, it is important to understand the argument and possible shift in the controlling law.

In Dove, the claimant was seeking authorization of lateral interbody fusion surgery as per Dr. Atwater, the authorized treating physician. In defense, employer/carrier #2 asserted that the claimant’s work accident was not the major contributing cause of his need for surgery. Pursuant to Pearson v. Paradise Ford, the claimant argued that his prior work-related accident cannot serve as the basis for a MCC defense. The JCC found a distinction between Pearson and the case at hand, as the claimant had settled the first work-related injury claim. The JCC in his Final Order held Pearson does not apply when a claimant settles their first work-related injury and that employer/carrier #2 may raise major contributing cause to deny the claimant’s surgery.

The claimant in this case suffered two work-related accidents. The first accident occurred on August 4, 2010, when the claimant suffered a compensable injury to his low back. He received indemnity and medical benefits and ultimately underwent back surgery, paid for and authorized by employer/carrier #1. The claimant retained an attorney and settled the case for $80,000.00 in either 2013 or 2014. He did not work again until January 2015, when he was hired by employer/carrier #2.

On March 26, 2015, the claimant was involved in a motor vehicle accident of such severity that his vehicle was totaled. The claimant injured his back and face, and following the accident began experiencing constant sharp pain and numbness in both legs. The authorized treating physician recommended the claimant undergo a lateral interbody fusion and stated that the surgery was causally related to the March 2015 accident. The employer/carrier #2’s IME physician recommended epidural injections.

Due to the conflict in medical opinions, the JCC appointed an EMA. The EMA opined that “the 3/26/2015 motor vehicle accident is not the major contributing cause for the patient’s surgical treatment. Given the likelihood that his current complaints would have worsened at some point, the identification of pre-existing degenerative change on diagnostic studies, the correlation of both symptom and development and the degenerative change to the prior lumbar fusion, and the likelihood of pre-existing symptoms . . . the major contributing cause to his current need for treatment is the prior L4-L5-S1 fusion and associated work injury.” The EMA further explained that the claimant would have required a second surgery at some point as a result of the first accident; that, although the first surgery includes a fusion at L4-5 and L5-S1, the claimant now requiring a fusion at the adjacent level of L3-4 is the result of the prior fusion increasing stress at the L3-4 level. The EMA did agree, however, that the claimant’s need for surgery was caused by a combination of the two injuries.

The JCC reasoned that barring employer/carrier #2 from raising MCC as a defense would have several unjust results. First, the plain language of § 440.09(1), Florida Statutes, does not include an exception to the application of the MCC standard when the alternative potential cause of the claimant’s condition, need for treatment, or disability is a work-related accident. The JCC distinguished the instant case from B & L Services v. Coach USA, by stating that the court’s holding in B & L Services concerned the inapplicability of § 440.09(1) related to a contribution claim between employers or carriers. 791 So.2d 1138 (Fla. 1st DCA 2001). Second, requiring the employer/carrier #2 to pay for the claimant’s surgery would allow the claimant to keep all of his settlement proceeds, which took into account future medical treatment. Third, if employer/carrier #2 had to pay for the surgery it might seek contribution from employer/carrier #1, essentially requiring employer/carrier #1 to pay for the surgery twice. Fourth, the claimant could continue to slightly reinjure that body part at every new place of employment, and hold that employer accountable for treatment for which the claimant had already received compensation. Finally, allowing the claimant to shift responsibility for a surgery he received payment for in a settlement would discourage settlements in workers’ compensation matters.

Therefore, the court denied the claimant’s claim for authorization of the lateral interbody fusion intervention as the MCC was not the injury sustained while working for employer/carrier #2. This opinion has two possible interpretations, one that the plaintiff’s attorney will likely assert (the narrow approach) and another which the attorney for an employer/carrier will likely assert (the liberal approach).

A plaintiff’s attorney will assert that this case holds that an employer/carrier can raise MCC as a defense when a claimant settles a previous workers’ compensation claim if several factors are met. Under this narrow application, an employer/carrier can raise MCC when a claimant sustains an injury, receives indemnity and medical benefits, undergoes surgery, continues having pain, is most likely to require a second surgery, settles the claim for its full-value, and then sustains a second work-related injury that requires the surgery anticipated at time of settlement.

In response, an employer/carrier attorney will argue that in hindsight it does not actually matter whether a second surgery was anticipated at time of settlement, settlement was for the full-value of the claim, additional treatment was precipitated by the original accident for which the claimant received indemnity and medical benefits, or whether the employer/carrier found the first injury compensable. Therefore, the employer/carrier attorney will argue the more liberal interpretation, which holds that an employer/carrier can assert MCC to a claimant’s need for treatment if they received a settlement for the prior injury and that prior injury is the major contributing cause for the treatment sought.

As always, we are closely monitoring the appeal of this matter. In cases with significant exposure, carriers may wish to consider citing this claim to support an MCC denial. Because it is only a JCC decision that is on appeal, this is clearly not binding authority. With that said, even though the issue may be appealed, this argument allows carriers an opportunity to avoid unnecessary exposure that cannot be recovered at a later date.