39 Fla. L. Weekly D2511c
error in awarding continuing medical treatment for work-related neck injury —
Judge of compensation claims properly considered claimant’s preexisting
condition, degenerative changes to cervical spine unrelated to any accident, in
analyzing whether major contributing cause for need for treatment was
work-related injury where there was evidence that the preexisting condition
required some level of treatment prior to workplace accident — Competent,
substantial evidence supported finding that major contributing cause of
claimant’s need for ongoing treatment was her compensable injury
ADMINISTRATION, Appellants, v. IVONNE PABELLON-NIEVES, Appellee. 1st District.
Case No. 1D14-2092. Opinion filed December 3, 2014. An appeal from an order of
the Judge of Compensation Claims. W. James Condry, II, Judge. Date of Accident:
June 4, 2010. Counsel: Pamela J. Cox and Jodi K. Mustoe of Cox & Rouse,
P.A., Maitland, for Appellants. Michael J. Winer of the Law Office of Michael J.
Winer, P.A., Tampa; Kellye A. Shoemaker, Maitland, for Appellee.
argues that the Judge of Compensation Claims (JCC) erred in awarding continuing
medical treatment for Claimant’s work-related neck injury. Finding no error in
the JCC’s award of the continuing care, we affirm the order. We write, however,
to clarify application of section 440.09(1)(b), Florida Statutes (2009).
If an injury arising out of and in the course of employment combines
with a preexisting disease or condition to cause or prolong disability or need
for treatment, the employer must pay compensation or benefits required by this
chapter only to the extent that the injury arising out of and in the course of
employment is and remains more that 50 percent responsible for the injury as
compared to all other causes combined and thereafter remains the major
contributing cause of the disability or need for retreatment. Major contributing
cause must be demonstrated by medical evidence only.
United Parcel Services, Inc., 53 So. 3d 328 (Fla. 1st DCA 2010). Based on a
review of the trial transcript, the order on appeal, and the briefs submitted by
the parties, it appears that the holding in Bysczynski is often
misunderstood by both the bench and the bar.
evidence rather than an issue of law. This court held that the JCC’s ruling that
the degenerative condition was the major contributing cause of the need for
treatment was not supported by any medical evidence (and in fact the expert
medical advisor expressly testified that the preexisting degenerative disc
disease was not a cause of Mr. Bysczynski’s need for surgery). Id. at
330-31. Although this court observed in Bysczynski that the claimant’s
preexisting degenerative disc disease “merely bespeaks Claimant’s age,” such was
not a holding that age-related illnesses or conditions can never be a
contributing cause of a disability or need for treatment for the purposes of
major contributing cause analysis. Id. at 331. Closer review of
Bysczynski reveals that it does not matter whether a preexisting
condition is “age-appropriate;” what matters is whether there is medical
evidence that it is the major contributing cause of the need for the requested
treatment. See § 440.09(1)(b), Fla. Stat. (2012) (providing that if
compensable work injury combines with preexisting condition to cause or prolong
need for treatment, employers need provide benefits only to extent work injury
is and remains major contributing cause of need for benefits); Ch. 03-412, § 6,
Laws of Fla. (amending section 440.09(1)(b) as of October 1, 2003, to require
that major contributing cause be proven “by medical evidence only”).
degenerative changes to her cervical spine and not based on any prior accident.
The JCC distinguished the facts of this case from the facts in
Bysczynski. The JCC explained that in Bysczynski, the degenerative
condition in Mr. Bysczynski’s spine did not independently require any level of
treatment either before or after the worker’s two compensable accidents. For
that reason, the JCC correctly explained that in Bysczynski this
condition was not properly considered a contributing cause for major
contributing cause purposes.
preexisting neck condition required some level of treatment prior to this
workplace accident; consequently, a question arose as to “whether Ms. Nieves’
degenerative neck condition merely bespoke of her age or whether it was a
preexisting condition requiring treatment that may be considered a
contributing legal cause of her injury and need for treatment and thus — a
proper subject for the application of the major contributing cause standard.”
(Emphasis in original.)
doing so, he appropriately considered the nature of the preexisting condition —
including the level of treatment necessitated by the preexisting condition prior
to the date of the accident — as compared to Claimant’s current condition and
need for treatment. Because competent, substantial evidence supports the JCC’s
finding that the major contributing cause of Claimant’s need for ongoing
treatment was her compensable injury, we affirm the order.
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