Cases

Findings regarding an apportionment defense asserted by the employer/carrier are reviewed for record competent substantial evidence.  Apportionment is an affirmative defense and the employer/carrier has the burden of proof to establish entitlement to a reduction of benefits payable to an injured worker pursuant to Section 440.15(5)(b), Florida Statutes.  Court determined that competent substantial evidence supported the JCC's finding that the employer/carrier is entitled to apportion 25% of the cost of the claimant's shoulder surgery.   The claimant's preexisting right shoulder condition was exacerbated/aggravated by a compensable injury.  Court denied apportionment concerning the preexisting degenerative change in the claimant's shoulder since there was no evidence that the degenerative changes were exacerbated/aggravated by the compensable injury.

The claimant asserted that the apportionment statute was unconstitutional since it violates a claimant's right to access to the courts.  Such assertion is reviewed de novo.  Due to the strong presumption of constitutional validity of Section 440.15(5)(b), Florida Statutes, such a claim on constitutionality should be denied unless it is determined to be invalid beyond a reasonable doubt.  Court determined in this case that it could not conclude that this section was invalid.  There was no evidence that the doctor could not perform surgery based on the apportioned sum. There was also no evidence presented that the treatment of the preexisting condition was necessary because it was otherwise a hindrance to recovery from the work place injury.  "Hindrance to recovery" clearly requires employer/carrier to be responsible for treatment of conditions not causally related to the employmernt only if one of the primary purposes of the treatment is to remove hindrance to recovery from the compensable condition and only to the extent treatment of unrelated conditions is necessary to effectively treat the compensable condition.