Florida Courts: Definitive Interpretation Of 'Daubert' Standard for Workers' Comp Expert Testimony – The Rules of the Game Have Changed

What has happened? 

• Where a worker brings to the 'accident' (or alleged accidental aggravation, exposure claim, etc.) a pre-existing condition/disease/impairment or need for treatment -- E/C is potentially exposed to payment for problems it didn't cause, which is why statutory tools to help E/C avoid or mitigate such exposure have always been part of the act.

• However, in Giaimo, a case of first impression (construing the still fairly new 'Daubert' evidentiary standard), the Court has made it much more difficult to defend on the basis of 'MCC' and/or 'apportionment,' which are the current statutory tools/defenses designed to shield E/C from the cost of problems it didn't cause.
• The Court ruled: E/C's physician's "pure opinion testimony" as to apportionment of anatomical impairment was legally inadequate to satisfy the "Daubert" requirement that such 'opinion' testimony be; 

 "...the product of reliable principles and methods etc.)."(under §90.702)

ANALYSIS:

• To simplify: the legislature seems to be working at cross purposes in this area of the law: i.e., the point where the standard of proof meets the thing which must be proven. 

• On the one hand Claimant has a high burden of proof: nearly every claim must be proven "to a reasonable degree of medical certainty" based on "objective findings" only, per §440.09(1). 
• On the other hand, the legislature also demands -- of Claimant and E/C alike -- that we prove things not readily amenable to proof via 'objective medical evidence,' such as percentage points of major contributing cause ("more than 50%" under §440.09(1)), and apportionment of medical benefits (under §440.15(5)(b)).
• a)    The problem started long ago, when the legislature failed to include "instructions" or standards for how to go about proving MCC and apportionment of medical benefits;
• b)    ...while at the same time: no MCC/apportionment' courses are being taught in medical school.

• Since initial passage and then the tightening of these tests in 2003, but especially since introduction of the Daubert standard in 2013, MKRS worried this day might come. The method of proof so often relied on (e.g., "Doctor, what in your opinion is the MCC of. . . . ) no longer passes muster.  (MKRS is innovating responsive tactics even as this message goes out.) 

o    At first blush, while both sides are impacted, the E/C will likely be set back furthest by this decision.  Nevertheless, Claimant's expert must also pass the test of proving ‘injury' under this standard before the E/C's obligation to defend arises.

• Special Note: The holding was narrowly focused on apportionment of impairment.  We believe the holding equally applicable to both "MCC" and "apportionment of medical benefits" cases, and that is where the trouble lies.
• The stakes here were PTD, and apportionment of 'impairment' was the only issue, not of 'medical' benefits. 
• As such, this should not have been a major problem for the defense because apportionment of "impairment" tracks anatomical ratings, which are supported by established standards -- whereas apportionment of "medical" benefits are, like MCC, dependent on a 'generic' (our phrase) percentage basis, which is what the Court seems to be challenging: i.e., just try to prove MCC under Daubert!
• In other words: unless a scientific basis or established schedule for the required 'percentage' is shown, as it is for instance in the 'blood alcohol' defense standard, or PIP ratings, the 'Daubert' standard must be satisfied. 
• Here, ironically, because the expert testified so loosely, E/C seemed to fail to carry its more easily addressed burden in an 'apportionment of impairment' case -- but it's the 'apportionment of meds' and establishing 'MCC' that will be impacted by the decision - and THAT'S what we are most concerned with! 

Discussion/Other Practical Problems: 

• To what dates of accident does Giaimo apply? We believe this ruling will be deemed procedural and therefor applicable to all dates of accident in depositions and proceedings from 11/26/14 forward (even cases in the pipeline now will be newly vulnerable to reversal).
• HOWEVER:  Failure of the opposing party to make a timely "Daubert"  objection or challenge will result in waiver, so claimants can't pop it for the first time on appeal. 
• There are of course statutory ways around the problem, but they will require future amendments. 

• For instance, the "blood alcohol" defense has exacting, specific criteria. §440.09(7), just as PIP ratings are tied to specific established guides.

• What about an EMA?  First, how do you get there?  The Court reviewed this question as a matter of law;
• Translated: even if a JCC finds 'conflict' in medical "opinions" of two doctors (regarding MCC/apportionment), the Court will strike, for example, an E/C's doctor's opinion that does not satisfy ‘Daubert' "as a matter of law," thus eliminating the basis for an EMA in the first place.  Therefore even the opinion of an EMA will be stricken because there is no conflict where one of the two ‘conflicting' opinions (let's say E/C's treater or IME) is not legally sufficient under the new, lethal combination of §440.09(1) (requirement of objective/clear and convincing proof) and §90.702 (standards for testimony by experts that same be "the product of reliable principles and methods").
• Also; assuming two 'valid' opinions form a good 'conflict,' the resulting opinion of an EMA itself must also satisfy the same 'Daubert' standards.

• MKRS has long been concerned over the Court's earlier conclusion MCC/apportionment do not apply where the 'prior' condition was work related and treated through the WC system.  We now fear an even greater erosion of E/C's capacity to mitigate exposure in consequence of preexisting conditions -- until and unless new methods are devised by which to effect the legislative goal of insulating E/C from unwarranted exposure (burdens which long ago were carried by the Special Disability Trust Fund, aka,  'second injury fund'). 
• The Court's opinion is not yet final. 

BOTTOM LINE/TAKE AWAY:

• E/C's ability to mitigate/avoid pre-existing and otherwise unrelated exposure is vital to the Act:  without tools to mitigate and/or avoid these where appropriate, the employer has no means by which to insulate itself from exposure for the cost of problems it didn't cause.
• The principle statutory tools by which to block unwarranted exposure for E/C currently are MCC and apportionment, and if they are not functioning as intended, a serious imbalance results. Yet, by initial appearances, these crucial tools have been blunted dramatically in Giaimo.

• For now, the defense will be challenged to develop means to counteract the impact of this opinion -- and it becomes essential that E/C play a proactive role in enabling same.
• For example, 'first impressions' are now more important than ever, i.e., the physician's impression of what is -- and what is not E/C's responsibility -- and how to prove same MEDICALLY.
• As such, it may no longer suffice to send in an NCM with a checklist, or for the adjuster to provide the treating physician 'forms' in what is now an area of the utmost evidentiary sensitivity: these initial forks in the road are likely to impact exposure for the life of the claim -- and it is the physician who now must be made ready first!

About the Author:

H. George Kagan was named among the "Top 100" Florida Super Lawyers for two years and included among Florida Super Lawyers for the last eight (including, as was recently announced, 2013).  In 2012 he received Martindale-Hubbell's 30^th Anniversary “AV- Preeminent” rating (Highest Possible Peer Review Rating in Legal Ability & Ethical Standards), and has for seventeen years seen continuous inclusion in Best Lawyers in America.  He is also immediate past chair of the national Workers' Compensation Committee of DRI: Voice of the Defense Bar, where he inaugurated the National Workers' Compensation Review, now in its 4^th year. 

In 2010 George was inducted into the American Bar Association's College of Workers' Compensation Lawyers, and his firm, Miller Kagan Rodriguez & Silver was designated as one of the nation's ‘Best Law Firms' by US News and World Report from 2010 to 2012.  In January 2012, he was inducted into the inaugural class of the Florida Workers' Compensation Hall of Fame.  Also in 2012, George lectured on the foundational topic of ‘medical benefits' at ‘The Forum' –- the combined Florida Bar Board Certification Course tied to the WCCP Claims Professionals CWCL Certification course.

You can learn more about Mr. Kagan here.

His firms website is www.mkrs.com.

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