Claims Management, Inc. v. Drewno

727 So. 2d 395, 1999 Fla. App. LEXIS 2517, 1999 WL 123291
CourtDistrict Court of Appeal of Florida
DecidedMarch 10, 1999
Docket97-2395
StatusPublished
Cited by9 cases

This text of 727 So. 2d 395 (Claims Management, Inc. v. Drewno) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Claims Management, Inc. v. Drewno, 727 So. 2d 395, 1999 Fla. App. LEXIS 2517, 1999 WL 123291 (Fla. Ct. App. 1999).

Opinion

727 So.2d 395 (1999)

CLAIMS MANAGEMENT, INC., and McClanes, Appellants,
v.
Thomas DREWNO, Appellee.

No. 97-2395.

District Court of Appeal of Florida, First District.

March 10, 1999.

*396 Rex A. Hurley, William Rogner and Paul L. Westcott of Hurley, Rogner, Miller, Cox & Waranch, P.A., Fort Pierce, for Appellants.

Robert M. Paine, Lakeland, for Appellee.

ON MOTION FOR REHEARING

ERVIN, J.

We grant appellants' motion for rehearing to the extent that this court's opinion of October 12, 1998, is withdrawn, and the following opinion is substituted therefor.

This is an appeal by Claims Management, Inc., and McClanes, the employer and carrier (E/C), respectively, from a workers' compensation order awarding Thomas Drewno (claimant) concurrent permanent total disability (PTD) benefits and permanent impairment (PI) benefits. We affirm the award of PTD benefits, reverse the award of simultaneous PI benefits, and remand for further proceedings.

On December 26, 1994, claimant suffered a compensable injury to his back and left groin area, the latter of which necessitated surgery on May 9, 1995, to release twisted ilioinguinal and genitofemoral nerves. Claimant was subsequently diagnosed with three psychiatric conditions: affective, somatoform and personality disorders. He later made a claim for PTD benefits based on the physical injury and psychiatric conditions allegedly caused by the industrial accident and for unpaid PI benefits, as well as interest, costs and attorney fees. The E/C defended, urging that the industrial accident was neither causally related to nor the major contributing cause of the psychiatric conditions. Following a hearing on the claim, the judge of compensation claims (JCC) found that claimant was entitled to both PTD and PI benefits as a result of his psychiatric injury; accordingly, he ordered the E/C to provide such benefits to claimant, as well as interest on all unpaid benefits, costs and attorney fees.

*397 The E/C first urges that the JCC erred in awarding claimant both PTD and PI benefits. We agree. This case is controlled by our court's recent decision in Brannon v. Tampa Tribune, 711 So.2d 97 (Fla. 1st DCA 1998), wherein we held that PI and PTD benefits are alternative—not cumulative— remedies. We therefore reverse the award of PI benefits and remand the case with directions that the same be deleted from the order.

The E/C next contends that the JCC erred in awarding PTD benefits, because claimant failed to establish a causal relationship between his psychiatric conditions and the industrial accident by clear and convincing evidence. In support of its argument, the E/C asserts that the 1994 amendments to chapter 440 impose two burdens of proof higher than those previously required for establishing causal relationship. First, mental injuries now require proof of causal relationship by clear and convincing evidence, rather than by a preponderance of the evidence. Second, the industrial accident must constitute the major contributing cause of the injury. As a result of these enhanced burdens, the E/C maintains that the claimant's evidence failed to meet the clear-and-convincing standard, because Dr. Bernstein answered that he did not know whether the psychiatric conditions were causally related to the industrial accident, nor did he know the major contributing cause of claimant's psychiatric conditions. The E/C further contends that the JCC erroneously relied on both medical and lay evidence to establish a causal relationship; therefore, the award should be reversed.

On rehearing, the E/C has now clarified its position that its arguments arise under section 440.09(1), Florida Statutes (Supp.1994), and the new statutory definition of "arising out of," which includes the term "major contributing cause," and not under section 440.09(1)(a), pertaining to subsequent injuries, or 440.09(1)(b), involving preexisting conditions. As so framed, we cannot agree with the E/C's contentions seeking reversal of the PTD award.

In an effort to reduce costs, the Florida Legislature made extensive revisions to the Workers' Compensation Law that became effective on January 1, 1994, which included section 440.09(1), Florida Statutes, providing as follows:

(1) The employer shall pay compensation or furnish benefits required by this chapter if the employee suffers an accidental injury or death arising out of work performed in the course and the scope of employment. The injury, its occupational cause, and any resulting manifestations or disability shall be established to a reasonable degree of medical certainty and by objective medical findings. Mental or nervous injuries occurring as a manifestation of an injury compensable under this section shall be demonstrated by clear and convincing evidence.

The first sentence of section 440.09(1) sets forth the test for causation. The claimant is now required to prove that he or she suffered "an accidental injury or death arising out of work performed in the course and the scope of employment." The sentences which follow describe the quality of evidence needed to establish causation. To prove the "injury, its occupational cause, and any resulting manifestations or disability," claimant's evidence must demonstrate causation by "a reasonable degree of medical certainty and by objective medical findings." When an initial industrial injury results in a mental or nervous manifestation, causation must also be "demonstrated by clear and convincing evidence." See McKesson Drug Co. v. Williams, 706 So.2d 352, 353 (Fla. 1st DCA 1998) (claimants are now bound to demonstrate mental injuries by clear and convincing evidence, i.e., evidence of a quality and character designed to produce in the mind of a JCC a firm belief or conviction, without hesitation, as to the truth of the allegations).

In considering causation under section 440.09(1), we must also examine section 440.02(32), Florida Statutes, which, too, was added with the 1994 amendments. This section defines the term "arising out of" as follows: "An accidental injury or death arises out of employment if work performed in the course and scope of employment is the major contributing cause of the injury or death." (Emphasis added.) As we explained in Vigliotti *398 v. K-mart Corp., 680 So.2d 466 (Fla. 1st DCA 1996), the statutory definition of arising out of requires proof of two elements. First, the claimant must have been performing work in the course and scope of employment at the time of the accident or injury. Second, the work so performed must constitute the major contributing cause of the accident or injury. Id. at 468. The first element refers to the origin of the accident, as well as the time, place and circumstances under which the accident occurred. The second element requires proof that the employment constituted more than a contributing, competent, precipitating or accelerating cause of the accident or injury; it must be the major contributing cause. Id. And see Hernando County Sch. Bd. v. Dokoupil, 667 So.2d 275 (Fla. 1st DCA 1995) (establishing the test for the arising out of element when there is a preexisting or idiopathic condition). Although the legislature did not define the term "major contributing cause," this court has defined it as "the most preponderant cause." Orange County MIS Dep't v. Hak, 710 So.2d 998, 999 (Fla. 1st DCA 1998).

We interpret the above portion of section 440.09(1) and the statutory definition of "arising out of" as focusing on the original injury or accident. See Vigliotti

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Bluebook (online)
727 So. 2d 395, 1999 Fla. App. LEXIS 2517, 1999 WL 123291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claims-management-inc-v-drewno-fladistctapp-1999.