Cases

An employer/carrier may seek to apportion a claimant's medical and indemnity benefits if a preexisting condition is aggravated by or merges with the effects of a workplace injury.  Apportionment is an affirmative defense and the employer/carrier has the burden of proof to establish entitlement to the reduction of benefits. Appellate court determined that competent and substantial evidence supported the JCC's finding the accident in this instance aggravated a preexisting cervical condition.  The question in this case was whether the testimony of the treating doctor was based on medically accepted evidence under Section 440.15(5)(b), which requires the employer/carrier to establish with medical evidence the degree of impairment to be apportioned.  Court determined that the JCC relied upon medical testimony that was "pure opinion" and thereby inadmissible under Section 90.702, Florida Statutes, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579.

In excluding the apportionment testimony of the treating doctor, the appellate court found that in rendering such an opinion, there was no testimony as to principles or methods utilized in rendering his opinion but rather such was based on the pure opinion testimony of the doctor.