Osceola County School Board and Florida, etc. v. Ivonne Pabellon-Nieves

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

OSCEOLA COUNTY SCHOOL NOT FINAL UNTIL TIME EXPIRES TO

BOARD AND FLORIDA FILE MOTION FOR REHEARING AND

SCHOOL BOARD INSURANCE DISPOSITION THEREOF IF FILED

TRUST CLAIMS

ADMINISTRATION,

Appellants,

v. CASE NO. 1D14-2092

IVONNE PABELLON-NIEVES,

Appellee.

_____________________________/

Opinion filed December 3, 2014.

An appeal from an order of the Judge of Compensation Claims.

W. James Condry, II, Judge.

Date of Accident: June 4, 2010.

Pamela J. Cox and Jodi K. Mustoe of Cox & Rouse, P.A., Maitland, for Appellants.

Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa; Kellye A.

Shoemaker, Maitland, for Appellee.

PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier argues that the

Judge of Compensation Claims (JCC) erred in awarding continuing medical

treatment for Claimant’s work-related neck injury. Finding no error in the JCC’s

award of the continuing care, we affirm the order. We write, however, to clarify

application of section 440.09(1)(b), Florida Statutes (2009).

Section 440.09(1)(b) provides:

If an injury arising out of and in the course of employment combines

with a preexisting disease or condition to cause or prolong disability or

need for treatment, the employer must pay compensation or benefits

required by this chapter only to the extent that the injury arising out of

and in the course of employment is and remains more that 50 percent

responsible for the injury as compared to all other causes combined and

thereafter remains the major contributing cause of the disability or need

for retreatment. Major contributing cause must be demonstrated by

medical evidence only.

This court addressed application of this subsection in Bysczynski v. United

Parcel Services, Inc., 53 So. 3d 328 (Fla. 1st DCA 2010). Based on a review of the

trial transcript, the order on appeal, and the briefs submitted by the parties, it appears

that the holding in Bysczynski is often misunderstood by both the bench and the bar.

Bysczynski ultimately turned on an issue of competent, substantial evidence

rather than an issue of law. This court held that the JCC’s ruling that the

degenerative condition was the major contributing cause of the need for treatment

was not supported by any medical evidence (and in fact the expert medical advisor

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expressly testified that the preexisting degenerative disc disease was not a cause of

Mr. Bysczynski’s need for surgery). Id. at 330-31. Although this court observed

in Bysczynski that the claimant’s preexisting degenerative disc disease “merely

bespeaks Claimant’s age,” such was not a holding that age-related illnesses or

conditions can never be a contributing cause of a disability or need for treatment for

the purposes of major contributing cause analysis. Id. at 331. Closer review

of Bysczynski reveals that it does not matter whether a preexisting condition is “age-

appropriate;” what matters is whether there is medical evidence that it is the major

contributing cause of the need for the requested treatment. See § 440.09(1)(b), Fla.

Stat. (2012) (providing that if compensable work injury combines with preexisting

condition to cause or prolong need for treatment, employers need provide benefits

only to extent work injury is and remains major contributing cause of need for

benefits); Ch. 03-412, § 6, Laws of Fla. (amending section 440.09(1)(b) as of

October 1, 2003, to require that major contributing cause be proven “by medical

evidence only”).

Here, the JCC found Claimant had a pre-existing condition—one based on

degenerative changes to her cervical spine and not based on any prior accident. The

JCC distinguished the facts of this case from the facts in Bysczynski. The JCC

explained that in Bysczynski, the degenerative condition in Mr. Bysczynski’s spine

did not independently require any level of treatment either before or after the

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worker’s two compensable accidents. For that reason, the JCC correctly explained

that in Bysczynski this condition was not properly considered a contributing cause

for major contributing cause purposes.

On the other hand, the JCC found that there was evidence that Ms. Nieves’

preexisting neck condition required some level of treatment prior to this workplace

accident; consequently, a question arose as to “whether Ms. Nieves’ degenerative

neck condition merely bespoke of her age or whether it was a preexisting condition

requiring treatment that may be considered a contributing legal cause of her injury

and need for treatment and thus—a proper subject for the application of the major

contributing cause standard.” (Emphasis in original.)

The JCC then proceeded to engage in a major contributing cause analysis. In

doing so, he appropriately considered the nature of the preexisting condition—

including the level of treatment necessitated by the preexisting condition prior to the

date of the accident—as compared to Claimant’s current condition and need for

treatment. Because competent, substantial evidence supports the JCC’s finding that

the major contributing cause of Claimant’s need for ongoing treatment was her

compensable injury, we affirm the order.

AFFIRMED.

THOMAS, ROBERTS, and ROWE, JJ., CONCUR.

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