Workers’ compensation — Apportionment — Aggravation of pre-existing condition

Workers’
compensation — Apportionment — Aggravation of pre-existing condition —
Competent, substantial evidence supported judge of compensation claims’ finding
that employer/carrier was entitled to apportion 25% of cost of shoulder surgery
where claimant’s pre-existing right shoulder condition was
exacerbated/aggravated by compensable injury — Finding that e/c was entitled
to apportion 20% of cost of surgery based on pre-existing degenerative changes
in shoulder was not supported by competent, substantial evidence that
degenerative changes were exacerbated/aggravated by compensable injury — Costs
— JCC to revisit award of prevailing party costs to e/c based on appellate
court’s ruling — Constitutionality — Because claimant failed to demonstrate
beyond reasonable doubt that his right to access to courts was violated by
section 440.15(5)(b), court declines to find that provision unconstitutional as
applied to claimant

RONALD FRANKEL, Appellant, v. LOXAHATCHEE CLUB, INC., AND
AMERISURE INSURANCE COMPANY, Appellees. 1st District. Case No. 1D15-1289.
Opinion filed November 5, 2015. An appeal from an order of the Judge of
Compensation Claims. Mary A. D’Ambrosio, Judge. Date of Accident: July 18,
2013. Counsel: Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale; and
Thomas Hedler of Wender, Hedler & Hessen, P.A., West Palm Beach, for
Appellant. Jeffrey L. Marks and Christine M. Tomasello of Pallo, Marks, Hernandez,
Gechijan and DeMay, P.A., Palm Beach Gardens, for Appellees.

(PER CURIAM.) In this workers’ compensation appeal, Claimant
essentially raises two issues: (1) Whether the Judge of Compensation Claims’
(JCC’s) apportionment findings, grounded in paragraph 440.15(5)(b), Florida
Statutes (2013), are supported by competent, substantial evidence, and if not,
whether the award of prevailing party costs to the Employer/Carrier (E/C) was
also made in error; and (2) if the JCC did not err in applying the apportionment
provisions of paragraph 440.15(5)(b), then that provision is an
unconstitutional violation of Claimant’s right to access to courts.

Background

Claimant, age 68 at the time of the final hearing, injured
his right shoulder, as well as his thoracic and lumbar spine, while assisting
others in moving a heavy armoire — all three conditions were accepted as
compensable by the E/C. Claimant testified that he had previously injured his
right shoulder — he described the injury as having “ripped [his] rotator cuff”
— approximately 15 to 20 years ago while trying out some new golf clubs. He
further testified he received no subsequent treatment for the right shoulder
after undergoing surgery and completing the post-surgery therapy. In addition,
an MRI taken after the July 18, 2013, accident revealed the presence of some
degenerative arthritis in the right shoulder bones, which Dr. Leotta,
Claimant’s authorized physician and the only medical expert to testify,
described as age-appropriate. Claimant denied ever receiving any medical
treatment for this degenerative condition. Dr. Leotta opined that 55% of the
need for the recommended right shoulder surgical procedure was due to the
workplace injury; 25% of the need was due to the pre-existing rotator cuff
condition; and 20% was due to the degenerative changes.

In the order under review, the JCC found that the E/C met
its burden to present medical evidence of the extent of Claimant’s pre-existing
conditions based on the MRI findings as Dr. Leotta testified that the degenerative
arthritis and the prior decompression surgery represented 45% of the need for
the recommended arthroscopic surgery. Finding that the E/C further met its
burden to establish that an aggravation of a pre-existing condition occurred,
the JCC concluded that the E/C was responsible for 55% of the cost of the right
shoulder arthroscopy as maintained by the E/C. Flowing from that conclusion,
the JCC awarded the E/C prevailing-party costs.

Apportionment

A JCC’s findings regarding apportionment, i.e., that a claimant
suffered an aggravation of a pre-existing condition, are reviewed for record
competent, substantial evidence. See Giaimo v. Fla. Autosport, Inc.,
154 So. 3d 385, 387 (Fla. 1st DCA 2014). “Apportionment is an affirmative
defense, and the E/C had the burden of proof to establish entitlement to the
reduction in benefits.” Id. Paragraph 440.15(5)(b), Florida Statutes
(2013), provides, in relevant part:

If
a compensable injury . . . or need for medical care, or
any portion thereof, is a result of aggravation or acceleration of a
preexisting condition, . . . only the . . . medical treatment associated
with such compensable injury shall be payable under this chapter, excluding the
. . . medical conditions existing . . . at the time of the accident. . . . Medical
benefits shall be paid apportioning out the percentage of the need for such
care attributable to the preexisting condition.

(Emphasis
added.)

Here, competent, substantial evidence supports the JCC’s
finding that the E/C is entitled to apportion 25% of the cost of the surgery as
Claimant’s pre-existing right shoulder condition was exacerbated/aggravated by
the compensable injury. The DWC-25 dated June 9, 2014, lists a diagnosis of
“right shoulder partial rotator cuff tear”; answers “yes” to the question of
whether there is “a pre-existing condition contributing to the current medical
disorder”; states that the “objective relevant findings . . . represent an
exacerbation (temporary worsening) . . . of a pre-existing condition”; and
states that the diagnosis is the MCC of the “reported medical condition . . .
the treatment recommended . . . [and] the functional limitations and
restrictions.”

Competent, substantial evidence does not, however, support
the JCC’s finding that the E/C was entitled to apportion 20% of the cost of the
surgery based on Claimant’s pre-existing degenerative changes in the shoulder
as there is no evidence that those degenerative changes were
exacerbated/aggravated by the compensable injury. After a careful review of Dr.
Leotta’s deposition testimony, it appears that the E/C never asked the doctor
whether Claimant’s degenerative changes were aggravated by the compensable
injury. Dr. Leotta did not include any mention of arthritis based on his
reading of the MRI film, but did agree that a review of the radiologist’s
report indicated the presence of mild acromioclavicular arthritis. The doctor
testified that “[t]his is a normal finding for anyone over the age of 35.” Upon
being asked by the adjuster to address the major contributing cause of
Claimant’s shoulder-related issues, the doctor assigned 20% for
“Arthritis/Degenerative Condition;” 55% for “Workers’ Compensation Injury Noted
Above”; and 25% for “Other Conditions/Factors/Previous Injuries.”

Because it was the E/C’s burden to establish its entitlement
to apportionment, it was the E/C’s burden to elicit specific testimony or other
medical proof that Claimant’s pre-existing degenerative changes were aggravated
by the compensable injury. That question was never put to the doctor. As such, competent,
substantial evidence does not support the JCC’s finding that the E/C is
entitled to apportion 45% of the total need for the surgery; only an
apportionment of 25% finds support in this record.

Access
to Courts

Constitutional issues, such as whether a statute violates a
claimant’s right to access to the courts, are reviewed de novo. See
Medina v. Gulf Coast Linen Servs., 825 So. 2d 1018, 1020 (Fla. 1st DCA
2002). Due to the strong presumption of the constitutional validity of
paragraph 440.15(5)(b), it should not be declared unconstitutional unless it is
determined to be “invalid beyond a reasonable doubt.” Id.

On this record, we cannot conclude that paragraph (5)(b) is
invalid. We note that Claimant was not required, under this order, to pay any
amount. There is no indication that Dr. Leotta would not perform the surgery at
55% of its total cost and, if not, that Claimant requested the E/C provide him
with a physician that would accept 55%. There is also no indication that
Claimant attempted to solicit testimony to the effect that the 55% of his
overall condition related to the workplace injury could not be treated without
treating the 45% that was unrelated; in other words, that treatment for the
pre-existing condition was necessary because it was otherwise a hindrance to
recovery from the workplace injury. See City of Miami v.
Korostishevski, 627 So. 2d 1242, 1244-45 (Fla. 1st DCA 1993) (holding
“hindrance to recovery” theory requires E/C to be responsible for treatment of
condition not causally related to employment only if one of primary purposes of
treatment is to remove hindrance to recovery from compensable condition, and
only to extent treatment of unrelated condition is necessary to “effectively”
treat compensable condition). Because Claimant failed to demonstrate beyond a
reasonable doubt that his right to access to courts has been violated by
paragraph 440.15(5)(b), we decline to find that provision unconstitutional as
applied to him.

Accordingly, the order is AFFIRMED in part and REVERSED in
part, and this matter is REMANDED for entry of an order finding the E/C
entitled to apportion out 25% of the cost of the recommended surgery. In
addition, the JCC should revisit her award of prevailing party costs based on
the foregoing. (ROBERTS, C.J., THOMAS and RAY, JJ., CONCUR.)