In Frankel v. Loxahatchee Club, Inc., a 68-year-old Florida man apparently injured his spine while moving a heavy piece of furniture at work. Following the incident, the man’s employer accepted compensability for the injury. At a workers’ compensation hearing before a judge of compensation claims (“JCC”), the employee admitted that he hurt his right shoulder 15-20 years before the workplace incident occurred. The man also stated he received no further treatment following rotator cuff surgery and post-surgery therapy.
MRI images taken following the 2013 workplace injury showed the employee had degenerative arthritis in his shoulder bones. According to the worker’s treating physician, the arthritis was typical for someone who had reached the man’s age. At the workers’ compensation hearing, the man testified that he never sought treatment for the arthritis.
At the hearing, the employee’s doctor recommended that the man undergo surgery on his right shoulder. In addition, the physician attributed 55 percent of the cause of the worker’s need for surgery to his on-the-job harm. The doctor also stated 25 percent of the man’s need to undergo shoulder surgery was attributable to his prior shoulder harm, and 20 percent was due to his degenerative arthritis.
Following the workers’ compensation hearing, the JCC concluded that the man’s employer was 55 percent responsible for the costs associated with the man’s surgery and awarded the employer prevailing-party costs under Section 440.15(5)(b) of the Florida Statutes. After that, the injured worker filed an appeal with Florida’s First District Court of Appeal.
On appeal, the court stated an employer has the burden of proving an injured worker’s benefits should be reduced based on the affirmative defense of apportionment. Next, the court applied the language of Section 440.15(5)(b) to the facts of the hurt man’s case. The court said competent evidence established that the employee’s preexisting condition caused 25 percent of his need for shoulder surgery. Despite this, the appellate court said substantial evidence did not support the JCC’s determination that 20 percent of the man’s harm was caused by the worker’s pre-existing degenerative arthritis. The court stated the man’s employer failed to ask the worker’s treating physician whether the man’s arthritis was exacerbated by his compensable workplace harm.
Since the burden of establishing that apportionment was merited was on the man’s employer, and the business failed to do so with regard to the degenerative arthritis issue, the court found that the evidence did not support the JCC’s order apportioning 45 percent of the worker’s need for shoulder surgery. Instead, Florida’s First District Court of Appeal ruled that the evidence offered in the record showed 25 percent of the costs associated with the procedure should be apportioned. Ultimately, the appellate court reversed a portion of the JCC’s order and remanded the case.
If you were hurt at work in South Florida, you are advised to discuss your right to recover workers’ compensation benefits with a veteran personal injury attorney. To speak with a skillful Miami workers’ compensation lawyer, call the knowledgeable advocates at Friedman, Rodman & Frank, P.A. at (305) 448-8585 or contact us through our website.
Frankel v. Loxahatchee Club, Inc., Fla: Dist. Court of Appeals, 1st Dist. 2015
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