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If you are over 40 (maybe even over 30), chances are life has started beating you up. For those of us lucky enough to live a full life, at some point we will most likely hear those dirty words: arthritis, degenerative joint disease, stenosis. These words represent conditions that develop over time, as we age. Many (some would say most) times, these underlying degenerative conditions lay dormant until some triggering event causes them to become active (and painful). What triggers them usually doesn’t matter, but if you are an injured worker who is subject to the Florida Workers’ Compensation Law, it matters…a lot. Your workers’ compensation insurance company must provide medical care for your injury as long as it is medically necessary, reasonable, and related to your industrial accident. In the case of workers’ compensation injuries involving pre-existing conditions, this last becomes the million dollar question. Here it is:

What is the Major Contributing Cause (MCC) of the need for medical treatment, or the disability?

Florida Statute 440.09(1)(b) states:

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 than 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 treatment.

How do you determine this in reality? If your injury involves a pre-existing condition, the answer to this question will most likely be impacted by philosophy: the philosophy of your treating physician that is. Years of hammering away at doctors opinions by defense lawyers in private conferences, seminars and essentially thru insurance propaganda has resulted in a gross misunderstanding of Major Contributing Cause by many physicians.

Case Study – End Stage Osteoarthritis in a 59 year-old

Consider these facts: my 59 year-old client had a car crash on the job. He banged his left knee against the dashboard. His knee became painful and swollen. He had treatment for knee pain over 20 years ago, but nothing in well over a decade. The MRI revealed a torn meniscus. He had an arthroscopic surgery to correct this. After the surgery, his knee was still in pain. His orthopedic surgeon now says he needs a total knee replacement. The catch: the doctor says it’s not because of the car accident; it’s because he has end-stage osteoarthritis in his knee. The doctor acknowledges that the accident permanently aggravated his preexisting osteoarthritis, but testified that the Major Contributing Cause of all future medical is this preexisting condition and not the work accident. Is the doctor correct?

Let’s look at this again: within 6 months of a car accident, a previously dormant, asymptomatic degenerative condition started hurting; that pain has led the patient to require a major surgery that he would not have needed if he didn’t have the car accident. In the philosophy of his treating orthopedic surgeon, however, the car accident was “the straw that broke the camel’s back,” and not greater than 50% of the cause. Result:  the workers’ compensation insurance carrier has denied all future benefits. He is on his own.

At first glance, this might make sense to you. However, from a practical perspective, this doctor’s philosophy is grossly unfair and it means that as we age, we should deal with our aging bodies on our own. If I push you down and you’re 85, the fact that you can’t bounce back like a 20 year old is on you, not me. Am I less responsible for your injuries because you are an old fart? That’s absurd. It should be absurd here to.

Imagine for a moment this is you, or your parent or grandparent. Life has been going along fine until you have an accident at work. Now you need a total knee replacement and you’re going to be out of work for awhile, but you are told: sorry, you’re just old. That’s on you, we don’t have to pay. Wait, what the what???  You lose your job, your medical, your life is now upside-down. Why? Because your treating doctor has been drinking the insurance industry’s Kool-Aid.

Pabellon-Nieves to the rescue

Thank God that common sense is starting to come back to the Florida Workers’ Compensation system (at least a little). After a series of cases involving the question of Major Contributing Cause, the Florida First District Court of Appeal provided some much needed guidance on this issue in the case of Osceola County School Board v. Pabellon-Nieves, 152 So.3d 733 (Fla. 1st DCA 2014). Here, the First DCA instructed the Judge to compare the level of care needed to treat the condition prior to the work accident to the level of care needed to treat the condition after the work accident to determine which tips the scales of MCC.

In our case, my 59 year-old client was receiving zero treatment prior to the work accident, yet 6 months post work injury the condition requires a total knee replacement. The answer should be obvious. The problem: despite the state of the law on this issue, doctors still give the opinion in cases like this that the Major Contributing Cause is the preexisting condition, AND insurance carriers still rely on this opinion when denying benefits. The result: my client is denied benefits unnecessarily for months, subjected to the stress of a trial, financial hardship and pain. In my client’s case, with virtually no prior treatment, presumably the weight of the current “level of care” will tip the MCC scale to the work accident and he will prevail, but only after the long hard slog of litigation.

My Point:  Doctors should know this by now.

Pabellon-Nieves came down in 2014. Why are will still fighting these cases? There are certain orthopedic groups that I know are going to cause me problems and result in medical opinions that are not supported by the law. I know this. The defense knows this. The carrier knows this. In fact carriers often times look for doctors with a reputation for this philosophy on MCC. Why? Most likely because it gets the claimant to the negotiating table to settle their case, which is the carrier’s ultimate goal in every case.

The Kicker

If you’ve read this blog and you are still having doubts that my client’s total knee replacement should be covered by his workers’ compensation claim, consider this: even after agreeing that the car accident permanently aggravated my client’s knee, the doc testified that my client would have needed a total knee replacement anyway. An interesting thing about knee X-rays: when most clinics take X-rays of knees, they do what’s called a “bilateral” view. This means that they take X-rays of both knees (they are both in the picture). My client needs a total knee replacement in his left knee due to end-stage osteoarthritis, right? So, what’s the X-Ray of the right knee show? The same end-stage osteoarthritis that exists in the left knee. My last question to the doc:

Question: So Doc, why aren’t you recommending a total knee replacement in my client’s right knee if he has the same condition?

Answer: That one doesn’t hurt.

And what caused it to hurt? Hmmmm….

 

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