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51% Pre-existing, 49% Due To The Work Injury. How Can They Possibly Know?

Throughout the life of your Workers Compensation claim you will hear “51%” more than you have ever previously heard the phrase in your life. Why? In Florida, for your injury to be deemed compensable, meaning the Carrier will provide medical treatment amongst other benefits, the Major Contributing Cause of the need for medical treatment must be the industrial accident you sustained on the job. Basically, Major Contributing Cause means that your work accident is 51% or more the reason that you need medical treatment as opposed to any other cause such as a pre-existing injury. If it is 51% pre-existing and 49% work, or even 50/50, your out of luck.

This issue comes up often times when there is a surgery recommendation such as a knee or shoulder replacement. If you have been recommended for surgery, undoubtedly the Carrier will send a nice letter to your treating physician asking her if the need for surgery is 51% or more due to the work accident. Sometimes, the doctor will opine that it is 51% pre-existing and 49% work and then you will receive a notice that everything is denied based on that opinion. Often, that notice is the first time that the injured worker has heard the doctor say such a thing. How can she possibly know that it is 51/49? Why not 52% or 47%? The numbers seem awfully arbitrary and often fit perfectly into the 51/49 that the Carrier would like. Now what?

The Daubert Objection to the Rescue

You are not out of luck. Sometimes, the treating physician is not even be the person filling out the form. It may be a staff member such as a Physicians Assistant or some other person. In this instance, it may just take a letter from an attorney pointing out the glaring differences from what she has been recommending and opining versus this new 51% pre-existing letter. It may take to a deposition and a timely Daubert objection from your attorney to get her opinion thrown out all together.

In addition to the above, Florida recently adopted the Daubert standard regarding admissibility of expert witness testimony. What this rule means, is that an expert may testify in the form of an opinion if that opinion is based off of sufficient facts or data; the testimony is the product of reliable principles and methods; and the witness has applied the principles and methods reliably to the facts of the case. Fla. Stat. 90.702 (codifying Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This is often seen as a more stringent standard for the admissibility of expert testimony and is meant to ensure that the testimony is both relevant and reliable. Daubert, at 589. This means that the doctor will now have that his testimony is based on sufficient facts and data, is the product of reliable principles and methods; and that she applied those principles and methods reliably to the facts of the case. It will be a lot tougher for a doctor to get away with just throwing down 51% over here and 49% percent over there when an attorney is making a Daubert objection and asking the right follow up questions.

An Experienced Attorney can help with Complex Workers Compensation Cases

These situations can become extremely complex. We would love to discuss your case and explain all of your options to make sure that the Carrier is providing the correct benefits that you are entitled to under the law. This is why it is important to hire a workers’ compensation attorney who handles these types of situations and knows what your entitled to and how to approach situations where the doctor has opined that work is no longer the Major Contributing Cause of the need for treatment. If you or someone you know is in this situation, please give us a call at (877) 817-4127.


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