39 Fla. L. Weekly D2484a
Workers’ compensation — Permanent total disability — Apportionment of
benefits — Aggravation of pre-existing condition — Evidence — Opinion —
Judge of compensation claims erred in relying on apportionment testimony of
physician where testimony was not the product of reliable principles and
SUMMIT CLAIMS/FLORIDA RETAIL FEDERATION, Appellees. 1st District. Case No.
1D14-0077. Opinion filed November 26, 2014. An appeal from an order for the
Judge of Compensation Claims. John J. Lazzara, Judge. Date of Accident: April
12, 2010. Counsel: Paul M. Anderson of Anderson & Hart, P.A., Tallahassee,
for Appellant. M. Kemmerly Thomas of McConnaughhay, Duffy, Coonrod, Pope &
Weaver, P.A., Tallahassee, for Appellees.
aggravated his injuries from a previous non-work accident. In this appeal, he
contests: (a) the finding that his pre-existing injuries were aggravated by the
work accident; and (b) the admission of medical testimony that his benefits for
his disabilities should be apportioned and thereby reduced. We summarily affirm
that the work-related accident aggravated a pre-existing condition, but reverse
the conclusion that Giaimo’s benefits should be apportioned, explaining our
was rear-ended while test-driving a customer’s car. As a result, he underwent a
cervical fusion and discectomy at the C5-C6 level, which was performed by Dr.
Albert Lee, his authorized treating neurosurgeon. A few months before this
work-related accident, Giaimo had been assigned an 8% permanent impairment that
was based, in part, on a 2009 non-work motor vehicle accident in which Giaimo
had injured his neck and lower back.
work-related accident, the employer/carrier (E/C) agreed that Giaimo was
permanently and totally disabled (PTD). The only issue, therefore, was whether
the E/C’s affirmative defense of apportionment was applicable. Medical opinion
testimony was provided by Dr. Lee, Dr. Robert Joseph (Giaimo’s authorized pain
management physician), as well as Dr. Charles Wingo (one of Giaimo’s initial
treating physicians). Based on this testimony, the E/C maintained that Giaimo
experienced an aggravation of his pre-existing injuries and that his PTD
benefits should be apportioned between the two accidents. Giaimo contended to
the contrary, arguing that no basis existed to support an aggravation of his
prior injuries; nor did the medical testimony establish a legally-admissible
basis for apportionment of his PTD benefits. Giaimo objected to the
apportionment testimony of Dr. Lee as being “pure opinion” unsupported by a
foundation of sufficient facts and data and lacking a basis in reliable medical
principles and methods as required by section 90.702, Florida Statutes. The E/C
countered that Dr. Lee, as Giaimo’s authorized treating physician, was in the
best position to address apportionment.
an aggravation of a pre-existing condition, relying on the testimony of Dr.
Joseph. The JCC also concluded that apportionment was appropriate, overruling
Giaimo’s objection to Dr. Lee’s opinion:
because Dr. Lee was the authorized treating neurosurgeon, well
qualified, and familiar with the claimant’s prior and current medical condition
thereby providing him with sufficient information to offer an opinion on
apportionment of the claimant’s condition and their causes. Moreover, said
opinion was not a pure opinion, but rather an expert witness opinion based on
knowledge, skill, training, and firsthand experience of the claimant’s physical
his opinion lacked a factual basis. As such, the JCC ruled that the E/C was
entitled to apportion Giaimo’s future benefits.
pre-existing injuries and 15% for the 2010 injury. The E/C, however, chose to
rely upon the excluded testimony of Dr. Wingo, who opined that apportionment
should be 49% for pre-existing injuries and 51% for the 2010 injury. The JCC,
noting that the E/C has “judiciously elected” to accept the lower percentage
(49% versus 85%), affirmed this election and entered an amended final order to
pre-existing condition is aggravated by, or merges with, the effects of a
workplace injury. § 440.15(5)(b), Fla. Stat. Apportionment is an affirmative
defense, and the E/C had the burden of proof to establish entitlement to the
reduction in benefits. See Eaton v. City of Winter Haven, 101 So.
3d 405, 406 (Fla. 1st DCA 2012) (“Apportionment is an affirmative defense; thus,
the E/C has the burden of proving each element of the defense.”).
the JCC’s finding that Giaimo suffered an aggravation of a pre-existing cervical
condition. Finding no abuse of discretion, see King v. Auto Supply of
Jupiter, Inc., 917 So. 2d 1015, 1017 (Fla. 1st DCA 2006), we affirm this
factual finding, one that is a prerequisite to consideration of the
review de novo — is whether the testimony of Dr. Lee was based on medically
acceptable evidence under section 440.15(5)(b), which requires that the E/C
establish, with medical evidence, the degree of impairment to be apportioned.
See Staffmark v. Merrell, 43 So. 3d 792, 797 (Fla. 1st DCA 2010)
(affirming JCC’s denial of E/C’s apportionment defense because medical evidence
did not support same). We conclude that the apportionment testimony upon which
the JCC relied was “pure opinion” and thereby inadmissible under section 90.702.
standards for expert testimony in the courts of this state as provided in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),
General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137 (1999), and to no longer apply the
standard in Frye v. United States, 293 F.2d 1013 (D.C. Cir. 1923)[.]”
See Ch. 13-107, § 1, Laws of Fla. (2013) (Preamble to § 90.702). As
amended, section 90.702 now provides:
If scientific, technical, or other specialized knowledge will assist
the trier of fact in understanding the evidence or in determining a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify about it in the form of an opinion or
(1) The testimony is based upon sufficient facts or
(2) The testimony is the product of reliable principles and methods;
(3) The witness has applied the principles and methods reliably to
the facts of the case.
standard reflected its intent to prohibit “pure opinion testimony, as provided
in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007)[.]” Ch. 13-107, § 1, Laws
of Fla; see Charles W. Ehrhardt, 1 Fla. Prac., Evidence § 702.3 (2014
ed.) (“In adopting the amendment to section 90.702, the legislature specifically
stated its intent that the Daubert standard was applicable to all expert
testimony, including that in the form of pure opinion.”) (footnote omitted).
records, including diagnostic studies, from the doctor who treated Giaimo for
his 2009 non-work-related motor vehicle accident. Dr. Lee arguably had
sufficient facts and data upon which he could base his opinion. We need not make
a conclusive decision on this requirement, however, because we find that the
second and third requirements were not met.
“reliable principles and methods” and thereby no reliable application of them.
When Dr. Lee was asked how he arrived at the percentages attributable to
Giaimo’s pre-existing condition and those attributable to the workplace injury,
he explained that “when I was asked and thought about it, that is the answer
that I came up with.” This testimony provides no insight into what principles or
methods were used to reach his opinion, and Dr. Lee did not demonstrate that he
applied any such principles or methods to the facts of this case.
testimony, the JCC explained that Dr. Lee’s “opinion was based on his experience
and treatment of the claimant and thorough review of the medical and treatment
records of Dr. Rodrigo Agbunag, M.D., who treated the claimant’s injuries
sustained in the 2009 non-work related care accident.” This basis for Dr. Lee’s
opinion, however, is precisely what makes it pure opinion testimony under
Marsh, 977 So. 2d at 548-49. Testimony of this type, though previously
acceptable as pure opinion under Marsh, no longer suffices under section
90.702. The 2013 Legislature has made clear that the admissibility of expert
opinions requires that the requirements of Daubert be met. Because no
basis in the record exists to support that Dr. Lee’s testimony was “the product
of reliable principles and methods” and that Dr. Lee applied such principles,
the JCC’s conclusion that Dr. Lee’s testimony met Florida’s newly-adopted
Daubert standard is erroneous.
apportion Giaimo’s future benefits is REVERSED, and this matter is REMANDED for
an order denying the affirmative defense of apportionment.
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