ALEXANDER L. COVER, APPELLANT,
v.
T G & Y STORE # 1331 AND SEABOARD FIRE & MARINE INSURANCE COMPANY, APPELLEES
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A workers' compensation claimant appealed a 25% reduction to his permanent total disability (PTD) award based on apportionment for natural progression of pre-existing arthritis. The court reversed, holding that apportionment is impermissible without competent evidence establishing the percentage of disability attributable to the natural progression of the pre-existing condition.
No. Unless there is evidence as to the percentage of disability caused by natural progression of a pre-existing condition, no apportionment may be made. The absence of any percentage evidence regarding the pre-existing condition's natural progression makes the case an 'all or none' matter regarding entitlement to compensation benefits.
[1] Apportionment of a permanent total disability award is improper without competent, substantial evidence establishing the percentage of disability attributable to the natu…
[2] In cases involving aggravation of a pre-existing condition, disability must be categorized as resulting directly from the accident, from aggravation of the pre-existing c…
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Join FLexlaw to unlock all legal intelligence“unless there is evidence as to the percentage of disability caused by natural progression of a pre-existing condition, no apportionment may be made”
Establishes the essential evidentiary requirement for apportionment in workers' compensation cases
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Join FLexlaw to unlock all legal intelligenceCover injured his right knee in 1974 and was awarded permanent total disability benefits. He had pre-existing arthritis at the time of injury. His tre…
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PER CURIAM.
Claimant appeals the deputy commissioner’s order that 25 percent of claimant’s permanent, total disability award be reduced because of the natural progression of his pre-existing arthritis. There being no competent, substantial evidence to support apportionment pursuant to Section 440.02(19), Florida Statutes (1973), we reverse.
When appellant injured his right knee in 1974, there was evidence he already suffered from arthritis. Dr. Flynn, his second treating physician (the first having retired), stated that based on the first treating physician’s notes, it appeared the trauma aggravated claimant’s arthritis. During neither of two depositions, however, could Dr. Flynn state what percentage of appellant’s disability was attributable to the natural progression of the arthritis.
The deputy entered a compensation order which, among other things, required the parties to depose Dr. Flynn a third time in hopes he would be able to state a percentage for apportionment. That order was appealed, this court resolving the issues other than apportionment. Cover v. T G & Y, 377 So. 2d 792 (Fla. 1st DCA 1979). Meanwhile, the apportionment question was remanded to the deputy.
Dr. Flynn was deposed for the third time, and once again he could not separate the arthritis’ natural progression from appellant’s total disability. Nevertheless, the deputy ordered that the PTD award be reduced by 25 percent. We hold however, that unless there is evidence as to the percentage of disability caused by natural progression of a pre-existing condition, no apportionment may be made. Russell House Movers v. Nolin, 210 So. 2d 859 (Fla.1968).
Evans v. Florida Industrial Commission, 196 So. 2d 748 (Fla.1967), stated at 752 that in cases involving aggravation of a pre-ex-isting condition, the consequent disability falls into three categories: Disability re- suiting directly and solely from the accident regardless of the pre-existing condition; disability resulting from aggravation of the pre-existing condition; and disability resulting from the normal progress the preexisting condition would have made had there been no accident. The Court also established the procedure for determining the proper apportionment (at 754):
In the future, in determining whether and to what extent apportionment should be made it will be necessary to determine the degree or extent of disability falling within the three categories stated earlier herein and to apportion out of an award only that portion of the disability attributable in fact to the normal progress of the pre-existing disease which would have occurred had the aggravating accident never occurred.
Russell House Movers, supra, is more specifically on point. Claimant in that case had a history of back difficulties and injured his back on the job. The deputy apportioned out 50 percent of the injury even though there was no testimony as to percentages. The Court held, at 862, that “a deputy may not apportion where there is no evidence of any percentage of disability from a pre-existing disease or condition. For the Petitioners as well as the Claimant the case on this record is an ‘all or none’ controversy as to allowance of compensation benefits.”
Appellees having presented no evidence as to the percentage of appellant’s total disability attributable to the natural progression of the pre-existing condition, the deputy erred in reducing the award by 25 percent, or by any amount at all.
REVERSED.
ERVIN, SMITH and SHIVERS, JJ., concur.
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Fla. Cast Stone & Royal Globe Ins. Co. v. Dehart, 418 So. 2d 1271 (Fla. 1st DCA 1982)…g disease. In such instances, when there is no evidence of the percentage of the total disability attributable to the natural progression of the preexisting disease, the failure of the deputy to apportion is not error. Cover v. T G & Y Store # 1331, 405 So. 2d 985 (Fla. 1st DCA 1981). The employer/carrier’s next challenge is to the deputy’s determination of average weekly wage. Claimant did not work substantially the whole of thirteen weeks immediately preceeding the injury, as contemplated Dy section 440.1…
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Watkins Eng'rs & Constructors & Gallagher Bassett v. Wise, 698 So. 2d 294 (Fla. 1st DCA 1997)…1966) (where medical expert was unable to [*296] apportion claimant s disability from a heart attack between his preexisting arteriosclerosis and his industrial accident, JCC’s speculative apportionment would be reversed); Cover v. TG&Y Store #1331, 405 So. 2d 985 (Fla. 1st DCA 1981) (“unless there is evidence as to the percentage of disability caused by natural progression of a pre-existing condition, no apportionment may be made”). The JCC also properly denied the E/C’s motion for an IME by Dr. Witorsch, b…
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Cathaleen Myers v. Sherwin-Williams Paint, 838 So. 2d 608 (Fla. 1st DCA 2003)…fficient producing cause of claimant’s total disability.”). The question is “[w]hether she was or [w]ould have become totally disabled in the absence of the [non-work-related] accident.” Wilcox, 458 So. 2d at 1210. See Cover v. T G & Y Store # 1331, 405 So. 2d 985, 986 (Fla. 1st DCA 1981). IV. Accordingly, all awards of indemnity benefits and any award of medical benefits that pertain specifically to the lower back or lumbar spine are reversed, and the case is remanded for further proceedings on those claim…
Authorities Cited
- Evans v. Fla. Indus. Comm'n, 196 So. 2d 748 (Fla. 1967)
- Russell House Movers, Inc. v. Nolin, 210 So. 2d 859 (Fla. 1968)
- Cover v. T G & Y & Seaboard Fire & Marine, 377 So. 2d 792 (Fla. 1st DCA 1979)