Court: District Court of Appeal of Florida; November 25, 2014; Florida; State Appellate Court
Anthony Giaimo sustained injuries in a workplace accident that exacerbated pre-existing injuries from a prior non-work accident. He appeals two points: (a) the finding that his prior injuries were aggravated by the work-related incident, and (b) the admission of medical testimony supporting the apportionment and reduction of his disability benefits. The court affirms that the workplace accident aggravated Giaimo's existing condition but reverses the decision on benefit apportionment.
In 2010, Giaimo, an auto technician, was rear-ended during a test drive, leading to a cervical fusion and discectomy. Prior to this incident, he had been assessed with an 8% permanent impairment from a 2009 motor vehicle accident affecting his neck and back. At a benefits hearing, the employer/carrier (E/C) acknowledged Giaimo's permanent total disability but asserted that benefits should be apportioned between the two accidents. Medical testimonies from Dr. Albert Lee (treating neurosurgeon), Dr. Robert Joseph (pain management physician), and Dr. Charles Wingo (initial treating physician) were presented. The E/C argued for apportionment based on these opinions, while Giaimo contended there was insufficient basis for such claims.
Giaimo objected to Dr. Lee's testimony regarding apportionment, claiming it was unsupported and lacked a reliable foundation per Florida statutes. The E/C maintained that Dr. Lee, as the authorized treating physician, was qualified to address the apportionment issue. The Judge of Compensation Claims (JCC) found that Giaimo had both a new injury and an aggravation of a pre-existing condition, relying on Dr. Joseph's testimony while accepting Dr. Lee's opinion on apportionment as credible expert testimony. Dr. Wingo's testimony was excluded for lacking a factual basis.
The JCC determined the E/C was entitled to apportion Giaimo's future benefits, with Dr. Lee suggesting an 85%-15% split in favor of the pre-existing injuries, while the E/C opted for Dr. Wingo’s excluded testimony of 49%-51%. The JCC affirmed the E/C's decision to accept the lower apportionment percentage and amended the final order accordingly. The court notes that E/Cs can seek apportionment of benefits when a pre-existing condition is aggravated by a workplace injury, with the burden of proof resting on the E/C to justify any reduction in benefits.
Apportionment is an affirmative defense, placing the burden of proof on the Employer/Carrier (E/C) to establish its elements. The record supports the finding that Giaimo aggravated a pre-existing cervical condition, and there was no abuse of discretion in this determination. The central legal issue is whether Dr. Lee's testimony met the medical evidence requirements for apportionment under section 440.15(5)(b). The court concluded that Dr. Lee's testimony was 'pure opinion' and thus inadmissible under section 90.702, which was amended in 2013 to adopt the Daubert standard for expert testimony, requiring that expert opinions be based on reliable principles and methods. The court found that Dr. Lee did not demonstrate reliable methods or principles in forming his opinion regarding the apportionment of Giaimo’s impairment. Although Dr. Lee referenced medical records from Giaimo's prior treatment, this did not satisfy the Daubert standard. Consequently, the JCC’s ruling that the E/C was entitled to apportionment was reversed, and the case was remanded to deny the apportionment defense.
