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  • Florida Appellate Court Reduces Apportionment of Injured Workers’ Surgical Costs

Florida Appellate Court Reduces Apportionment of Injured Workers’ Surgical Costs

In Frankel v. Loxahatchee Club, Inc., the plaintiff suffered injuries on the job while moving a large piece of furniture. After the accident, the man submitted a claim for workers’ compensation benefits to his employer, which the employer accepted. At a hearing before the judge of compensation claims (“JCC”) assigned to the case, the worker stated that he had suffered injuries to his right shoulder roughly 15 to 20 years prior to the workplace accident. He also indicated that he did not obtain any treatment for the shoulder after receiving rotator cuff surgery and post-surgical therapy.

After the workplace injury, the man underwent MRI images, which indicated that the worker suffered from degenerative arthritis in his shoulder. According to the doctor treating the injured man, the arthritis was normal for a man of the worker’s age. During the same hearing before the JCC, the injured man stated that he did not receive any additional treatment for his arthritis. 

During the hearing, the worker’s physician suggested that the worker receive surgery for his right shoulder. The doctor also ascribed 55 percent of the worker’s need to receive surgery to the work-related accident. The doctor also indicated that one-quarter of the man’s need for surgery was attributable to the pre-existing shoulder injury, and another 20 percent was ascribed to his degenerative arthritis condition.

After the hearing, the JCC ruled that the employer was responsible for 55 percent of the costs associated with the ensuing surgical treatment. The JCC also determined that the employer was entitled to prevailing-party costs pursuant to Florida Statutes Section 440.15(5)(b). The worker filed a prompt appeal with the Florida First District Court of Appeal.

The appellate court first noted that the employer bears the burden of showing that the injured worker’s benefit payments should be reduced pursuant to the affirmative defense called apportionment. The court applied the statute in question to the injured worker’s case, concluding that there was sufficient evidence establishing that the injured worker’s preexisting shoulder injury contributed to 25 percent of his need for shoulder surgery. The appellate court also concluded, however, that there was not sufficient evidence to support the JCC’s ruling that 20 percent of the need for surgery was attributable to the worker’s arthritis condition. According to the appellate court, the employer did not properly ask the treating doctor whether the man’s arthritis was exacerbated as a result of the work-related injury.

Since the employer bore the burden of showing that apportionment was proper, and since the employer failed to do so regarding the employee’s arthritis condition, the court concluded that the record lacked enough evidence to support the JCC’s order apportioning the injured man’s need for surgical treatment. The appellate court ruled instead that the evidence showed that only one-quarter of the costs for the procedure should be apportioned, instead of the 45 percent that the JCC provided.

If you have suffered injuries while at work, you may be entitled to workers’s compensation benefits. At The Hoffman Firm, we have helped numerous Southwest Florida residents bring a claim against their employer and its workers’ compensation insurance company to seek the benefits that they deserve. We know what it takes to negotiate with insurance companies and will fight aggressively for your rights along every step of the way. Call us now at (800) 223-1866 or contact us online to set up your free consultation now.

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Evan A. Hoffman

Evan A. Hoffman

Mr. Hoffman’s philosophy is "our knowledge and experience is your best defense." He has been a featured author on criminal law issues such as driving under the influence, domestic violence and illegal searches.

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