What Is That Major Contributing Cause, Anyway?: An Analysis of Major Contributing Cause and Its Application
B efore a claimant may receive compensation or benefits under the workers’ compensation system, he or she must prove the occurrence of an accidental injury or death arising out of work performed in the course and scope of employment. In 1993, the Florida Legislature amended F.S. §440.02(32), and thereby created a new evidentiary burden for claimants to meet before being able to receive workers’ compensation benefits. Effective January 1, 1994, an accident does not arise out of the course and scope of employment unless the work performed in the course and scope of employment is the “major contributing cause” (MCC) of the injury or death. In many instances, practitioners and judges in the workers’ compensation system will have no problems interpreting and applying this statutory scheme, because if a claimant lacking preexisting conditions is injured while working in the course and scope of the employment, liability will attach. Unfortunately, it is not always so simple.
In the absence of a statutory definition, the birth of MCC created many questions that remain unanswered. This article seeks to explore three distinct areas so one may obtain a better understanding regarding interpretive issues involved in the applicability of MCC. First, the article concentrates on the qualitative analysis—in other words, how MCC applies when a claimant attempts to prove entitlement to temporary or permanent benefits. The article next focuses on the quantitative analysis, or the quantity of evidence required to meet this new burden. Finally, the article discusses the possible effect MCC has on other legal principles that employers/carriers utilize in attempting to avoid liability.
Initially, it is worth noting, this article focuses on the applicability of MCC to those claimants who suffer from preexisting conditions. For instance, what happens when a claimant who has a preexisting condition is injured in the course and scope of employment, and the industrial accident hastens the necessity for treatment or creates a temporary disability? F.S. §440.09(1)(b) provides “[i]f an injury arising out of and in the course and scope of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer [is responsible] to the extent that the injury arising out of and in the course and scope of employment is and remains the major contributing cause of the disability or need for treatment.” The latter part of this statute provides for a disjunctive test. An employer is responsible for compensation or benefits if the industrial accident is and remains the MCC of the disability or need for treatment. One must then wonder what happens if the MCC of a claimant’s injury is the preexisting condition, but the industrial accident hastens the necessity for treatment. Or, what happens if the MCC of a claimant’s injury is the preexisting condition, but the industrial accident causes a temporary disabling aggravation of the preexisting condition? Further, one wonders how the MCC analysis applies to a resulting disability created by the combination of the industrial accident and a preexisting condition. These questions raise an important overall question: Does MCC focus on the claimant’s condition or on the existence of a temporary disabling aggravation?
Clearly, a claimant may suffer a temporary disabling aggravation of a preexisting condition as a result of an industrial accident. After the industrial accident, a claimant will inevitably reach the point of maximum medical improvement, which is the point when lasting improvement is no longer reasonably anticipated. At maximum medical improvement, the permanency of the claimant’s condition or the resulting disability can be determined. City of Pensacola v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1999). Is it possible that F.S. §440.09(1)(b) requires claimants to prove that the industrial accident is the MCC of a temporary disabling aggravation, and then once again prove that the industrial accident is the MCC of the resulting disability in order to receive permanent benefits?
The case law below shows the MCC analysis may mark a change in contemporary thinking. Some practitioners may have incorrectly assumed that so long as the industrial accident is the MCC of the initial disability or need for treatment, the employer also would be liable for the resulting disability. However, this reasoning is flawed. The cases below demonstrate that an additional hurdle must be overcome to determine the compensability of the claimant’s resulting disability. If the industrial accident is the MCC of the initial disability or need for treatment, it is not necessarily the MCC of the resulting disability. The employer is not responsible for the resulting disability unless the accident is also the MCC of the permanent condition or resulting disability. As we shall see, the MCC analysis focuses on two distinct aspects of a claimant’s condition at separate, but crucial, stages of a claim.
The analysis then shifts focus to the required quantity of proof needed to establish the necessary causal relationship between the accident and the injury. Unfortunately, neither the legislature nor case law has provided a concise definition for the quantity of proof needed to prove the existence of MCC. In Orange County Mis Dept. v. Hak, 710 So. 2d 998 (Fla. 1st DCA 1999), the First DCA denied a claimant medical benefits because she failed to prove the compensable injury was “the most preponderant cause” of her resulting condition. Unfortunately, the First DCA did not define the phrase “the most preponderant cause.” Could MCC mean an injury is compensable even if a claimant has three causes contributing to a condition and the industrial accident is responsible for 40 percent of the claimant’s condition, while the other two unrelated causes are responsible for 30 percent each? Or, could MCC mean an injury is compensable only if the industrial accident is responsible for at least 51 percent of the resulting condition?
Of final noteworthiness, with the advent of some of the cases discussed in this article, a rational argument can be made that the legislature’s amendment to F.S. §440.02(32) may have overridden the apportionment doctrine, which was established by the Supreme Court in the 1967 case of Evans v. Florida Industrial Commission, 196 So. 2d 748 (Fla. 1967). In Evans, the Florida Supreme Court created a three-prong test to determine when an employer would be able to apportion its liability when an unrelated cause contributes to a claimant’s disability resulting after an industrial accident:
It means that in cases in which a pre-existing disease is aggravated by industrial injury, the resulting disability, determined as of the time of the award, is to be considered as falling into three categories: (1) that which resulted directly and solely from the accident and which would have occurred even in the absence of the pre-existing disease; (2) that which resulted from the acceleration or aggravation of the pre-existing disease by the accident; and (3) that which resulted from the normal progress of the disease and would have existed had the accident never occurred. Disability falling within the first two categories is compensable under the terms of the statute. It is the purpose of Sec. 440.02(19) to relieve the employer of disability within the third category by apportioning it out of an award. We so hold.
Accordingly, if the normal progress of the preexisting disease would have existed had the accident never occurred, the employer could apportion its liability to the extent the unrelated cause contributed to the resulting disability. It is imperative here to understand the term “resulting disability,” since apportionment has a very limited applicability in workers’ compensation cases. Apportionment only applies to the resulting disability existing after a claimant reaches maximum medical improvement. In fact, F.S. §440.15(5)(a) provides “[c]ompensation for temporary disability, medical benefits, and wage loss benefits shall not be subject to apportionment.”
Once one understands the framework surrounding MCC cause and apportionment, one is ready to analyze the proper application of MCC and the relationship between the two doctrines.
• Major Contributing Cause Prior and Subsequent to Maximum Medical Improvement
Under the qualitative analysis, there are two distinct periods that must be examined. The first period deals with benefits or treatment prior to maximum medical improvement, while the second deals with benefits and treatment after maximum medical improvement. In both scenarios, the inquiry concentrates on whether the MCC standard focuses on the necessity for treatment or on the overall condition. Claimants will invariably argue MCC should refer to the temporary disabling aggravation of a preexisting condition, regardless of whether the disabling aggravation requires medical treatment only or actually manifests a disability. Conversely, the employer/carrier will argue the qualitative analysis should focus on the claimant’s condition as a whole. Accordingly, the employer/carrier would ask the court to focus on the fact that but for the preexisting condition, the necessity for treatment and resulting disability would be different. In fact, in the absence of the preexisting condition, the claimant may very well not have needed treatment, so the MCC of the resulting injury is the preexisting condition. As such, if the focus is on the claimant’s overall condition, the employer/carrier should be able to escape all liability for medical and indemnity benefits.
The following case illustrates the applicability of MCC prior to maximum medical improvement. In J&J Enterprises v. Oweis, 733 So.2d 1149 (Fla. 1st DCA 1999), the claimant sought compensability of work-related symptoms that exacerbated a preexisting condition. The employer argued that the industrial accident was not the MCC of the claimant’s condition, especially since she was employed with the employer for two weeks prior to the filing of her claim and no specific traumatic event existed. In light of the arguments, the court held the claim was compensable because the MCC provision was satisfied by the claimant’s proof that the workplace activity produced a disabling aggravation of the preexisting condition. Accordingly, so long as an industrial accident creates a disabling aggravation of the preexisting condition, temporary disability benefits and medical treatment related to the disabling aggravation will be awarded, because the industrial accident will almost always be the MCC of the disabling aggravation. Therefore, in applying F.S. §440.09(1)(b), major contributing cause applies only to the existence of a disabling aggravation prior to maximum medical improvement.
On the other hand, Griffith v. Brown & Root Industrial Services, 736 So2d 102(Fla. 1st DCA 1999), and Olsten Staffing Services, 724 So. 2d 719 (Fla. 1st DCA 1999), reveal that MCC shifts focus once a claimant reaches maximum medical improvement. In Griffith, the court affirmed the denial of permanent total disability benefits and reversed the award of continued medical treatment, because the industrial accident only caused a temporary exacerbation of a preexisting condition, and the work-related accident yielded no permanent impairment. Based on this analysis, the court held the industrial accident was not the MCC of either the claimant’s disability or the need for treatment. Unlike the J&J Enterprise analysis, in Griffith, once the claimant reached maximum medical improvement, MCC focused on the resulting disability rather than the temporary exacerbation. Similarly, in Olsten Staffing Services, the court reversed and remanded an award of permanent total disability and continuing medical care, because the claimant failed to prove the industrial accident was the MCC of the permanent total disability or need for further treatment. In other words, once a temporary exacerbation subsides, and a claimant reaches maximum medical improvement, the analysis focuses on what is the MCC of the overall condition or resulting disability, rather than what was the MCC of the temporary exacerbation.
With the advent of the J&J Enterprises, Griffith, and Olsten Staffing Services, the First DCA set forth a unique framework for the application of the major contributing cause standard in cases where F.S. §440.09(1)(b) applies. These cases make clear maximum medical improvement is of extreme importance in the application of MCC. It is apparent the MCC analysis has to be made on two occasions: once to establish entitlement to temporary disability benefits and medical treatment for a disabling aggravation of a preexisting condition, and the second time to establish entitlement to permanent disability benefits and medical treatment for the resulting disability.
• The Numbers Game
To further complicate issues, one must consider the quantitative analysis of major contributing cause. Does MCC mean the industrial accident must be at least 51 percent responsible for the resulting condition, or does MCC mean the industrial accident just has to be more responsible than any other individual cause? Admittedly, the First DCA may have answered our question in Hak, when it held MCC means “the most preponderant cause.” Although the denotation of this term suggests MCC means the industrial accident must be at least 51 percent responsible, until the First DCA clearly states so, the term undoubtedly will continue to be litigated.
We could simply assume MCC means an employer/carrier is responsible only if the industrial accident is at least 51 percent responsible, but this approach is deceivingly straightforward. Considering an employer/carrier may only apportion disability benefits after maximum medical improvement, the logical question would be: “Can an employer apportion out the unrelated causes that represent less than 51 percent?” For example, if the industrial accident represents 51 percent of the resulting disability and the preexisting condition is 49 percent responsible, can the employer apportion out 49 percent of its liability of the resulting disability? This answer depends on whether the legislature created an all-or-nothing apportionment with the birth of MCC. In other words, if a claimant is obligated to meet the new heightened evidentiary burden of proving an industrial accident is the most preponderant cause of the disability or need for treatment, should the employer still be able to escape a portion of its liability for the resulting disability, which is directly related to the need for treatment?
If, however, we assume MCC means the industrial accident merely has to be the largest individual cause of the resulting condition, then a dilemma is created. For example, if there existed two preexisting conditions which are each 30 percent responsible for a resulting disability, and the industrial accident was 40 percent responsible, then claimants would argue the MCC of the resulting disability would be the industrial accident, because it is more responsible than any other individual cause. However, employers would respond by arguing that they should be able to combine the two preexisting conditions and argue the MCC would be the unrelated factors. One would think an employer/carrier should be able to combine the unrelated causes, otherwise claimants with more preexisting conditions have a greater opportunity to establish the necessary causal relationship. However, until so clearly stated, the question will exist.
Combining the Quantitative and Qualitative Analysis
The final layer of confusion arises when the quantitative and qualitative analysis are combined. Prior to maximum medical improvement, the question is “what is the MCC of the existence of a temporary disabling aggravation?” When combined with the quantitative analysis, the end result usually will not vary. The industrial accident will be the MCC of the claimant’s temporary disabling aggravation, so temporary disability benefits and medical treatment will be in order.
The more difficult analysis is created when the qualitative analysis is combined with compensability of the resulting disability or need for treatment after maximum medical improvement. Initially, it is easy to see if the industrial accident only caused 49 percent of the resulting disability or need for treatment, no further benefits are in order, because the MCC of the resulting disability would be the preexisting conditions. However, could this be what the legislature intended: to have claimants denied benefits under the workers’ compensation system, a system that represents their exclusive remedy? F.S. §440.11 (1999). Where would claimants seek relief for lost wages and medical benefits? Could this approach be opening doors to common lawsuits?
If, however, the industrial accident is at least 51 percent responsible for the resulting disability and need for treatment after maximum medical improvement, will the employer/carrier be fully responsible for the resulting disability? Would the employer/carrier be able to apportion its liability to the extent that the normal progress of a preexisting condition continued to exist had the accident never occurred? This analysis presumes MCC did not replace apportionment with an all-or-nothing approach.
On the other hand, what if the resulting disability is combined with the largest of any individual cause theory? For example, assume a claimant suffers from two preexisting conditions which are each 30 percent responsible for his injury and the industrial accident is 40 percent responsible. The first question is whether the employer can combine all the unrelated causes and compare that percentage to the percentage of fault the industrial accident has for the resulting disability, and avoid liability if the total of all unrelated causes exceeds the degree of fault assigned to the industrial accident. If so, the claimant will fail to meet the evidentiary burden set forth in F.S. §440.09; therefore, the employer will not be responsible for the resulting disability. If an employer cannot combine the unrelated causes, then the answer depends on whether MCC replaced apportionment with an all-or-nothing approach.
Major Contributing Cause and Its Effect on the Future of Apportionment
New case law may hold additional consequences for the doctrine of apportionment, established in 1967 in the case of Evans v. Florida Industrial Commission, 196 So. 2d 748 (Fla. 1967). The Supreme Court established a three-pronged test to determine when a claimant or employer may apportion their liability amongst unrelated causes. The doctrine allows for the possibility of partial avoidance of liability to the extent that a cause unrelated to the industrial accident contributes to a claimant’s resulting disability after maximum medical improvement is reached.
However, our qualitative analysis shows how new case law makes MCC a hurdle to awarding benefits after maximum medical improvement, in that such an award becomes an all-or-nothing proposition. The question of whether liability exists hinges on whether the industrial accident is the MCC of the “resulting disability.”
Within this framework, the coexistence of the apportionment doctrine and MCC creates an unusual wrinkle. If, quantitatively, the industrial accident is found not to be the MCC of the resulting disability, the employer/carrier will not be held liable. The claimant will not receive permanent benefits, period. If the industrial accident is found to be the MCC, then the employer/carrier is liable. In either case, liability is found by application of some quantitative analysis of MCC, and that analysis involves some manner of looking at the percentage contributions of the industrial accident and other preexisting conditions to the resulting disability.
But in the instance where liability is found via MCC, can the employer/carrier take another bite at the apple by looking again at the percentages in the form of the apportionment doctrine? Can the employer/carrier now claim to be only liable for a percentage, after having been declared liable in the first place due to that percentage? Basically, the employer/carrier would play the numbers game twice, but each time using the same numbers.
This situation comes dangerously close to the “moral hazard” often mentioned by economists. The employer/carrier may be encouraged to take a chance on arguing the percentages in the quantitative analysis of MCC. This chance becomes a no-lose situation if, upon a positive finding of MCC, the employer/carrier can still avoid total liability (hence avoiding an all-or-nothing situation) by then invoking the apportionment doctrine. Should the employer/carrier win the MCC cause issue, the claimant will be absolutely precluded from receiving any benefits. However, the employer/carrier loses nothing by a positive finding of MCC—regardless of the particular quantitative approach taken—because liability will never inure beyond the percentage that the industrial accident contributes to the resulting disability.
This possibility of the employer/carrier having everything to gain and nothing to lose lends support to an argument that the legislature’s amendment to F.S. §440.02(32) may have overridden the apportionment doctrine. The statute and the recent case law may necessitate this reading in order to avoid the incongruous result contemplated above. Such an interpretation has not been propounded by the legislature or the case law, but wise practitioners will keep this argument in mind should they find themselves litigating in a similar situation.
This article sets forth a new and unique application of MCC to claimants who suffer from a preexisting condition and then suffer an industrial accident that combines with the condition. On the one hand, claimants will receive compensation or benefits before maximum medical improvement so long as the industrial accident is the MCC of the existence of a temporary disabling aggravation. Given our analysis, claimants will almost always receive compensation or benefits prior to maximum medical improvement, since any disabling aggravation would not have existed but for the industrial accident. On the other hand, once a claimant reaches maximum medical improvement, the MCC analysis will focus on the claimant’s resulting disability. Considering that under F.S. §440.09(1)(b), an aggravation caused by an industrial accident will combine with a preexisting condition, permanent benefits will be awarded if the industrial accident is the MCC of the resulting disability.
The MCC analysis also focuses on the quantitative perspective. As indicated in Hak, MCC means the most preponderant cause. On the one hand, if the industrial accident is at least 51 percent responsible for either a disabling aggravation or resulting disability, the answer is simple enough: Liability exists. However, it is still unclear what occurs when the industrial accident is only 40 percent responsible for either a disabling aggravation or resulting disability and two other preexisting causes are 30 percent responsible. The question remains whether plurality is synonymous with preponderant, or if plurality equates with “most preponderant.” In other words, can an employer/carrier combine the unrelated causes so as to exceed the responsibility inuring to the industrial accident?
Finally, we have considered the possible effects that the legislative changes and new case law may have on the apportionment doctrine. Our analysis of the applicability of MCC after maximum medical improvement suggests an all-or-nothing proposition. When taken to its logical conclusion, this all-or-nothing proposition presents problems in conjunction with the apportionment doctrine. Although not explicitly stated by the legislature or in the case law, public policy may dictate that MCC represents a legislative repeal of apportionment. To allow otherwise might create a moral hazard inasmuch as an employer/carrier may be encouraged to litigate the MCC, since there exists the opportunity to escape full liability even after losing in the MCC analysis.
Mario L. Perez practices workers’ compensation law with Rigell, Leal & Ring. He graduated from Florida International University and received his J.D., with honors, from the University of Florida in 1997. Mr. Perez is also admitted into the Southern and Northern federal districts.
Daniel T. Chang practices personal injury law with the firm of Russell Lazega. He graduated with a B.S. from Florida State University and an M.S. from the University of Florida. Mr. Chang received his J.D. from the University of Florida in 1997 and was inducted into the Order of the Coif.
This column is submitted on behalf of the Workers’ Compensation, Section, Dorothy C. Sims, chair, and Pamela L. Foels, editor.