1ST DCA ADVANCES INDUSTRY’S INTERESTS ON TWO IMPORTANT W.C. FRONTS: MCC and EMA
Certistaff, Inc./Summit Holdings v. Owen,
1D15-1513, 2015 WL 8529116 (Fla. 1st DCA 12/11/15)
Spoiler Alert(s): Why Is This A Notable Case?
As for MCC; The various rationales employed by the JCC below, in one permutation or another, often are used to transfer to the employer responsibility for significant personal, preexisting conditions following very little (if any) authentically injurious employment contribution to those conditions;
This case curtails a JCC’s discretion to make such awards by its repudiation of two commonly encountered rationalizations for them.
As for the EMA; Instead of fulfilling its intended purpose of helping end litigation (except in rare instances where something really has gone wrong with an EMA’s opinion), it seems the EMA is becoming more and more just ‘another’ — but more costly and time consuming – step along the way;
This case suggests the court will look at the standard for overriding the EMA’s opinion more often as a legal question than a purely factual one, which will make it more difficult for a JCC to override an EMA’s opinion, as was originally intended.
What Has Happened:
On December 11, 2015 the 1st DCA issued a notable opinion in MKRS’ case; Certistaff, Inc./Summit Holdings v. Owen.
Facts In A Nutshell:
Claimant suffered severe degenerative conditions in his shoulder(s). After a minor fall he petitioned for right shoulder replacement on grounds that while he may have been mildly symptomatic (and ‘self-medicating’) prior to the accident, he was not receiving medical treatment, and, could possibly have gone without shoulder replacement had there been no fall, which now caused new, immobilizing impairment (or so he alleged).
The judge appointed an EMA who reported: the MCC of the need for shoulder replacement was the preexisting condition: there was no objective medical evidence of new injury.
However; the JCC overrode the EMA opinion and awarded shoulder replacement using, not in so many words but essentially, the ‘straw that broke the camel’s back’ analogy: i.e., he was able to work, and might not have needed surgery, but for the fall. The JCC also stressed there had been no “medical treatment” in the time prior to the fall.
On appeal MKRS challenged both the JCC’s disregard of the EMA, and, misapplication of MCC.
The Court reversed on both grounds in an opinion likely to be of ongoing benefit in the defense of such cases.
MCC: The ‘straw that broke the camel’s back’ is exactly the doctrine the legislature sought to abolish via implementation of the MCC statute. In oral argument, MKRS gave an analogy of a spark from a pickax that sets off a mine explosion: was the spark “the MCC” — or was it accumulated coal dust following inadequate ventilation? The spark was really just the catalyst, i.e., possibly the “least” — and definitely the ‘last’ — but not the MAJOR contributing cause. Therefore; “he was working one minute and on a stretcher the next, so pay him” is a false test: the mine was ‘fully functioning’ one second before the blast too. The court in effect agreed via the following remarkable language;
“Even though the Claimant’s 2013 fall may be the most recent aggravator of his shoulder problems, the JCC did not support her conclusion that the fall constituted the MCC….”
Also, the JCC — purporting to follow the recent (and problematic) “Spence” decision — was held to have erred in placing overriding emphasis on the absence of prior medical treatment (while also downplaying actual, ongoing symptoms), neither of which really matter at all! It may be counter-intuitive, but a claimant can be completely asymptomatic and still not be able to claim the work was the MCC of a collapse. That is why high blood pressure and diabetes are called ‘silent killers.’ In short: it is the objective medical evidence that matters, not a claimant’s ‘before and after’ testimony — and again the court’s language was refreshingly clear on this point:
“The case relied upon by the JCC, Spence …… does indeed speak to a MCC analysis based on the level of treatment required by the pre-existing condition as one way to address the MCC question-after all, if a pre-existing condition is not causing the need for any medical treatment, it can be difficult to describe the condition as a cause at all, much less the major contributing cause. The JCC’s approach-and error-was to focus solely on whether Claimant was, or recently had been, undergoing physician-provided medical treatment for his shoulder to the exclusion of other evidence that Claimant was in fact experiencing shoulder pain before the workplace accident and the objective medical evidence of pre-existing shoulder conditions contributing to, if not causing, his symptoms.”
EMA: The court has often in the past ruled it will not second-guess JCC’s who override (presumptively correct) EMA opinions. It accomplished this by treating the question of whether “clear and convincing evidence” exists to override such opinions as “competent substantial evidence” (CSE) questions, giving a JCC broader leeway and making it harder for an appealing party to reverse.
In oral argument MKRS urged that in the field, the EMA was rapidly fostering the opposite of what the legislature intended: instead of the “decider” who ends litigation by preempting it, thereby saving the time and expense of trial, the EMA was becoming an almost inevitable added expense that delayed outcomes. The reason for this, MKRS argued, was overriding EMA opinions at trial was becoming so commonplace that it was simply worth a shot, especially for the claimant’s bar, presumption or not. And at that point, what purpose did they serve, after all?
Without announcing any policy change, the court simply applied a legal (‘de novo’) test, not a “CSE” test, in determining “clear and convincing evidence” wasn’t present and then it reversed — not for further proceedings — but with instructions to dismiss the claim. In short, the holding is a strong signal that overriding an EMA opinion is now more likely to come under appellate scrutiny — on authority of this case.
The decision is not yet final and subject to rehearing. However it is a unanimous ruling and likely to become final, at which time it will constitute an important new tool in helping insulate industry from the costs of personal, pre-existing diseases and structural compromises to which the employer has ‘contributed’ little or nothing of substance.
Where industry has made any “substantial” (meaning as opposed to ‘insubstantial’) contribution to a personal, pre-existing risk of harm, it should pay, subject to apportionment where applicable. However, given the elimination of the Special Disability Trust Fund, it is important that industry also have a “relief valve” for problems it has not caused — and the substituted MCC and apportionment filters from unwarranted exposure were becoming clogged in the ebb and flow of court interpretations. They may function better after Owen.
MKRS is proud of this, its most recent contribution in a 57-years-and-counting campaign to protect at the trial level — and promote in the appellate courts — the interests of Florida industry exclusively. MKRS also wishes to thank the firm of Banker, Lopez, Gassler, P.A., Tampa, which handled the trial and assisted on appeal toward bringing about this excellent outcome.