The “Major” Change in “Major Contributing Cause”
George A. Helm III, Esquire
Public Entity Legal Solutions

Section 440.09(1 )(b), Florida Statues (1994) provided a pertinent part…

“The employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and the course of employment is and remains the major contributing cause of the disability or need for treatment.”

Unfortunately, the 1994 law did not provide any definition of major contributing cause.   As a result, employers and claimants were forced to look to the courts for a definition.   The definition finally came in the case of Closet Maid y Sykes, 763 So.2d 377 ( Fla. 1 st DCA 2000).   In this case, the First District Court of Appeal held that the term “major contributing cause” meant the greatest of any other single cause contributing to the disability or need for treatment.   Furthermore, a judge of compensation claims could not determine the major contributing cause by considering both medical and lay testimony.   That is, the employee was not required to present medical evidence or testimony specifically stating that the workplace event was a major contributing cause of his or her disability or need for treatment.   Instead, the employee could present evidence, from a medical expert, and from other sources, from which a judge of compensation claims could conclude the major contributing cause was work related.   

The Closet Maid v Sykes definition, unfortunately, allowed for the scenario where the major cause did not necessarily have to be 50% or more responsible for the conditions to be compensable.   For example if there were three (3) known causes for a condition, two (2) at 33% each, and the workplace cause at 34% under the Closet Maid v Sykes definition the workplace cause would qualify as the major contributing cause.   The Florida Legislature was not happy with this result.   Effective October 1, 2003 Section 440.09(1) provides its pertinent part…

“The accidental compensable injury must be the major contributing cause of any resulting injuries.   For purposes of this Section, “major contributing cause” means the cause which is more than 50% responsible for the injury as compared to all other causes combined for which treatment or benefits is sought…major contributing cause must be demonstrated by medical evidence only.”

Section 440.09(1 )(b) now provides in its pertinent part…

“The employer must pay compensation or benefits required by this chapter only to the extent that the injury is arising out of and in the course of employment is and remains more than 50% responsible for the injury as compared to all other causes combined and thereafter remains the major contributing cause of disability or the need for treatment.   Major contributing cause must be demonstrated by medical evidence only.”

Under the new law the workplace accident/injury, in order to be compensable, must be greater than all other causes of the disability and the need for treatment combined.   Furthermore, when deciding the major cause a judge of compensation claims can only consider medical evidence.

Under the new law effective October 1, 2003, not only must the workplace accident be more than 50% responsible for the claimant’s condition but, only disabilities and medical treatment associated with the compensable injury is payable.   Section 440.15(5 )(b) provides:

“If a compensable injury disability or need for medical care, or any portion thereof, is a result of aggravation or acceleration of a pre-existing condition, or is a result of merger with a pre-existing condition, only the disabilities and medical treatment associated with such compensable injuries shall be payable under this chapter, excluding the degree of disability or medical conditions existing at the time of the accident, regardless of whether the pre-existing condition was disabling at the time of the accident or at the time of the impairment rating and without consideration whether the pre-existing condition would be disabling without compensable accident.   The degree of permanent impairment or disability attributable to the accident or injury shall be compensated in accordance with this section, apporportioning out the pre-existing condition bases on the anatomical impairment rating attributable to the pre-existing condition based on the anatomical impairment rating attributable to the pre-existing condition.   Medical benefits shall be paid apporportinging out the percentage for the need for such care attributable to the pre-existing condition.   As used in this paragraph, “merger” means the combining of a pre-existing permanent impairment or disability which, when the effects of both are considered together, result in a permanent impairment or disability rating which is greater than the sum of the two permanent impairment or disability ratings when each impairment or disability is considered individually.”

When read together, even if workplace accident is more than 50% responsible for a claimant’s injury, the claimant cannot recover medical treatment, disability or impairment benefits attributable to a pre-existing condition.   Because “major contributing cause” becomes an issue most often when the injury and aggravation of a pre-existing condition.   A plain reading of the aforementioned statutory section leads one to believe that when these types of conditions arise, the claimant will be responsible for a portion of his medical treatment.   If this conclusion is correct, who will pay for that treatment.   If this is conclusion is correct, who will pay for treatment?   The group health insurance carrier?   If the claimant doesn’t have group health insurance, the claimant.   What is a claimant can’t pay for the treatment?   Unfortunately, Chapter 440 doesn’t answer these questions.   I expect these issues to he heavily litigated and again, we will be waiting on the First District Court of Appeal to provide the answers.

The moral of the story is, what appears great on the surface might not be so great underneath.   If employees are left with no way to pay for medical treatment that wouldn’t have been necessary but for a workplace accident by law is not responsible for the treatment, you can bet the employees, through their counsel, will be looking for other ways to obtain compensation for these injuries.   I expect the claimant’s bar to pursue compensation for these injuries in any manner possible, and if the elements of simple employer negligence exist, you can bet they will head straight for circuit court.

From a practical perspective, when deciding whether or not to provide medical treatment or indemnity benefits for a workplace accident employers will need to consider all the possibilities.   The aforementioned statutory sections draw no distinction between a pre-existing condition for which an employee received compensation, and one for which an employee did not receive compensation.   It’s easy to justify not paying indemnity or medical benefits for a portion of a condition when the claimant received a large settlement to compensate him or her for that condition.   The problem arises, however, when there was no such compensation.   What is the pre-existing condition was unknown to the employee and the employee was asymptomatic.   The answers to these questions do not come easily.   My advice to employers is to look at each case individually and consider all the possible outcomes.   Consider the equity of each situation, and at the same time, keep in mind the appellate court may not strictly interpret the aforementioned statutory provisions. Printable Copy

*George A Helm III, Esquire is an employee if Preferred Governmental Claim Solutions. PELS is established as a service and a benefit to PGCS and their cleints. PELS is a non-for-profit enterprise.