Giaimo v. Florida Autosport, Inc.
154 So. 3d 385
Fla. Dist. Ct. App. 6th2014Background
- In 2010 Giaimo, an auto technician, was injured in a work-related rear-end collision; he previously had neck/back injuries from a 2009 non-work motor vehicle accident.
- Giaimo had earlier undergone cervical fusion (C5–C6) and had been assigned an 8% permanent impairment partly based on the 2009 accident.
- Employer/carrier (E/C) conceded Giaimo was permanently and totally disabled; the only contested issue was the E/C’s affirmative defense of apportionment between the 2009 and 2010 injuries.
- Medical testimony from Drs. Lee (authorized treating neurosurgeon), Joseph (pain management), and Wingo was presented; the JCC found aggravation of a preexisting condition and admitted Dr. Lee’s apportionment opinion but excluded Dr. Wingo’s.
- The JCC awarded apportionment (49% preexisting / 51% work-related) based on the E/C’s election to rely on Dr. Wingo’s percentages, and reduced future benefits accordingly.
- On review, the court affirmed the factual finding of aggravation but reversed apportionment because Dr. Lee’s apportionment opinion was inadmissible under the Daubert-based standard in section 90.702.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2010 work injury aggravated a preexisting condition | Giaimo: no aggravation; benefits should not be apportioned | E/C: 2010 accident aggravated preexisting neck/back injuries | Affirmed: competent substantial evidence supports aggravation finding |
| Whether E/C met burden to apportion future benefits under §440.15(5)(b) | Giaimo: apportionment testimony (Dr. Lee) was pure opinion lacking Daubert foundation | E/C: Dr. Lee, as authorized treating neurosurgeon, had sufficient familiarity and records to opine on apportionment | Reversed: Dr. Lee’s apportionment opinion inadmissible under §90.702 (Daubert); apportionment defense denied |
| Admissibility standard for expert apportionment testimony | Giaimo: Marsh-style pure opinion is insufficient post-2013 amendment to §90.702 | E/C: treating physician’s experience and record review suffice for admissibility | Held: 2013 amendment adopted Daubert; expert must show reliable principles/methods and application to facts |
| Whether JCC properly relied on excluded or elected medical opinions for percentage allocation | Giaimo: JCC erred in admitting Dr. Lee and in relying on excluded testimony | E/C: elected to accept Dr. Wingo’s lower percentage and JCC properly honored election | Held: Even assuming aggravation, apportionment percentages unsupported because admissible expert foundation lacking; apportionment reversed |
Key Cases Cited
- Eaton v. City of Winter Haven, 101 So.3d 405 (Fla. 1st DCA 2012) (apportionment is an affirmative defense and E/C bears burden of proof)
- King v. Auto Supply of Jupiter, Inc., 917 So.2d 1015 (Fla. 1st DCA 2006) (standard for reviewing factual findings for abuse of discretion)
- Staffmark v. Merrell, 43 So.3d 792 (Fla. 1st DCA 2010) (medical evidence must support apportionment defense)
- Marsh v. Valyou, 977 So.2d 543 (Fla. 2007) (addressing ‘‘pure opinion’’ expert testimony under prior Florida standard)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (U.S. 1993) (admissibility of expert testimony requires reliable methods)
- General Electric Co. v. Joiner, 522 U.S. 136 (U.S. 1997) (appellate review of expert admissibility discretion)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (U.S. 1999) (Daubert principles apply to non-scientific expert testimony)