Sunday, March 22, 2015

Workers' Compensation Section: Expert Testimony Under the Workers’ Compensation Act

By Anthony V. Cortese

The First District Court of Appeals was presented with an issue of first impression regarding expert testimony in Giamo v. Florida Autosport, 2014 WL 6679290 (Fla. 1st DCA Nov. 26, 2014). This decision will have broad application.

Giamo involved an individual who the employer/carrier agreed was permanently and totally disabled. There had been a vehicle collision during a test drive of a customer’s car, which led to cervical injuries and cervical fusion and discectomy followed by ongoing pain and disability. The employer/carrier raised an apportionment defense and brought medical testimony that a non-work-related, prior automobile collision resulted in a pre-existing condition that supported a reduction in benefits. The pre-existing, non-work-related collision had resulted in an 8 percent permanent impairment rating for the cervical and lumbar spine before the work-related collision occurred. The employer/carrier did not argue that there should be an 8 percent apportionment reduction based on the prior impairment but that there should be a 51 percent apportionment reduction based on new medical testimony.

The judge of compensation claims found that there had been a pre-existing condition, and the district court affirmed on that issue. However, the district court reversed and remanded on the finding that the employer/carrier had established the proper degree of apportionment by admissible expert testimony. It was held that since 2013, when the Florida Legislature modified section 90.702, Florida Statutes, to adopt the standards set in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), expert testimony has to be more than pure opinion to be admissible and adequate to support a favorable finding. The Daubert standard was held to apply in workers’ compensation cases, requiring the expert testimony to be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) a reliable application of the principles and methods to the facts of the case. 

In Giamo, when the doctor whose opinion was relied upon to sustain apportionment “was asked how he arrived at the percentages attributable to Giamo’s pre-existing condition and those attributable to the workplace injury, he explained that ‘when I was asked and thought about it, that is the answer I came up with.’” Id. The court declined to further elaborate on what is needed to meet the standard but held that the testimony here was inadequate to support an affirmative defense. The expert’s opinion here gave no basis whatsoever for the apportionment percentages, which is not acceptable under the new standard.

What this means for future cases is that experts will have to better explain the basis and reasoning for the percentages of medical causation attributed to various causes in order to survive a Daubert challenge. The question of exactly how the standard is to be applied to doctors and other experts is yet to be determined in workers’ compensation cases, but this is a new standard that will have to be considered and interpreted in future cases.