E. C. PRIDGEN, APPELLANT,
v.
STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION AND DIVISION OF RISK MANAGEMENT SERVICES, APPELLEES
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A 65-year-old worker with a 1977 compensable back injury was found permanently totally disabled, but the deputy commissioner apportioned 45% of the disability to preexisting conditions. The appellate court reversed, holding that the deputy failed to properly analyze whether preexisting impairments actually caused disability at the time of injury, and remanded for proper apportionment findings.
The apportionment was improper and reversed. Before apportioning preexisting impairments, a deputy must determine: (1) whether evidence shows normal acceleration of the preexisting impairment played a part in the resulting disability, and (2) whether the impairment was causing any disability at the time of the accident. If both questions are answered negatively, no apportionment is warranted because the disability results solely from the accident or its acceleration of preexisting disease.
[1] Apportionment of disability benefits requires a determination of whether preexisting impairments contributed to the resulting disability or were accelerated or aggravated…
[2] A deputy commissioner must determine if normal acceleration of a preexisting impairment played a part in the resulting disability before apportioning benefits.
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Join FLexlaw to unlock all legal intelligence“In apportioning preexisting impairments a deputy must initially determine: (1) whether there is any evidence that normal acceleration of the preexisting impairment played a part in the resulting disability; (2) was the impairment causing any disability at the time of the accident. If these two questions are answered negatively there can be no apportionment because the resulting disability of necessity results solely from the accident or from acceleration or aggravation of the preexisting disease and is compensable.”
Establishes the proper legal standard for apportionment of preexisting impairments in workers' compensation cases
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Join FLexlaw to unlock all legal intelligenceThe 65-year-old claimant suffered a compensable acute thoracic lumbar strain to his back in 1977. He had worked for his employer since 1962 in various…
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SHAW, Judge.
The 65-year-old claimant suffered a compensable injury to his back in 1977 that was subsequently diagnosed as an acute thoracic lumbar strain. The deputy commissioner found the claimant permanently totally disabled and apportioned out of the award 45% of the claimant’s over-all disability.
The claimant has worked for the present employer since 1962 and has a work history which includes farming, carpenter’s helper, truck driver and a 1973 jobvconnected injury which resulted in a compression fracture. The treating physician assigned an impairment rating of 20% to the 1977 compensable back injury and opined that because of the combined effect of the back condition, arthritis, heart problems and dizziness, the claimant is now totally incapacitated for work.
The claimant at the time of the award was permanently totally disabled with a 20% anatomical disability attributable to the 1977 accident. It can safely be assumed that the difference between the anatomical disability and the over-all disability rating reflects loss of wage earning capacity, which does not necessarily follow in the same proportion as anatomic impairment. Arcuri v. Morgan-Oswood & Associates, IRC Order 2-3207 (July 28, 1977).
It was, therefore, incumbent upon the deputy to apportion out of the award only that portion of the over-all disability as was shown to be impacting upon wage earning capacity at the time of the award. Richey v. Peninsular Casket Company, IRC Order 2-3458 (June 15, 1978); Kummer v. Broward Highland Construction Corp., IRC Order 2-3025 (August 30, 1976).
The claimant was gainfully employed and maintaining an average weekly wage approximately two times the existing minimum wage prior to the 1977 injury. There is, therefore, no support in the record for the deputy’s conclusion that because of preexisting conditions he probably would have been limited to minimum wage type work, had he been forced into the open labor market. The deputy couples this erroneous finding with a determination that since the osteoarthritis, the heart problems and dizziness preexisted the back injury there must be apportionment. This fails to take into consideration that all medical impairments are not disabilities for compensation purposes. In apportioning preexisting impairments a deputy must initially determine: (1) whether there is any evidence that normal acceleration of the preexisting impairment played a part in the resulting disability; (2) was the impairment causing any disability at the time of the accident. If these two questions are answered negatively there can be no apportionment be cause the resulting disability of necessity results solely from the accident or from acceleration or aggravation of the preexisting disease and is compensable. Killebrew Manufacturing Company v. Dawson, 370 So. 2d 460 (Fla.1979); Dillon v. Bill’s Trailer Sales, Inc., IRC Order 2-3323 (Jan. 16, 1978).
The deputy skipped this initial inquiry and concluded that because of preexisting medical conditions the claimant was unable to perform heavy labor before the 1977 accident, ergo, 45% should be apportioned out of his over-all disability. The order lacks a finding as to what part, if any, the preexisting impairments played in the resulting disability. Without such a finding the 45% apportionment lacks a basis for appellate review.
The order is accordingly reversed and the cause is remanded to. the deputy for further consideration and findings in accordance with this opinion.
ROBERT P. SMITH, Jr., and BOOTH, JJ., concur.
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Escambia Cnty. Council ON Aging & Auto-Owners Ins. Co. v. Goldsmith, 465 So. 2d 655 (Fla. 1st DCA 1985)…ews, 416 So. 2d 846 (Fla. 1st DCA 1982); Barile Excavation & Pipeline Sewer Improvement v. Hough, 417 So. 2d 843 (Fla. 1st DCA 1982); Willard Kaufman Company v. Rawlings, 414 So. 2d 641 (Fla. 1st DCA 1982); Pridgen v. State, Dept. of Transportation, 390 So. 2d 111 (Fla. 1st DCA 1980). Simply stated, Goldsmith contends there is no proof to support apportionment in this case. However, the cases he relies on to support his contention are based on statutes that pre-existed the 1979 amendments. The cases cited by…
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Ardmore Farms & the Claims Ctr. v. Smith, 504 So. 2d 483 (Fla. 1st DCA 1987)…these two concepts is important. While a claimant may incur an anatomical impairment of 10% of the body as a whole, his or her loss of wage-earning capacity will not necessarily occur in the same proportion. Pridgen v. Department of Transportation, 390 So. 2d 111 (Fla. 1st DCA 1980); Arcuri v. Morgan-Oswood & Associates, IRC Order 2-3207 (July 28, 1977). Likewise, apportionment of an anatomical impairment between two compensable injuries (or between a compensable injury and a preexisting condition) does not…