www.rissman.com
TAMPA COMMONS
ONE NORTH DALE MABRY HIGHWAY
11TH FLOOR
TAMPA, FLORIDA 33609
TELEPHONE (813) 221-3114
TELECOPIER (813) 221-3033
TAMPA@RISSMAN.COM
201 EAST PINE STREET
15TH FLOOR
P.O. BOX 4940
ORLANDO, FLORIDA 32802-4940
TELEPHONE (407) 839-0120
TELECOPIER (407) 841-9726
ORLANDO@RISSMAN.COM
709 SEBASTIAN BOULEVARD
SUITE B
SEBASTIAN, FLORIDA 32958
TELEPHONE (772) 228-3228
TELECOPIER (772) 228-3229
SEBASTIAN@RISSMAN.COM

 

 

On April 8, 2013, the 1st DCA reversed and remanded a Judge of Compensation Claim's (JCC) denial of permanent total disability (PTD) benefits in Benniefield v. City of Lakeland, 38 Fla. L. Weekly D781a (Fla. 1st DCA April 8, 2013), on grounds that the JCC had erred in determining the claimant's date of maximum medical improvement (MMI) for the purpose of awarding benefits.

Mr. Benniefield sustained a compensable back injury while working for the City of Lakeland on April 8, 2008. He was placed at MMI on January 7, 2009 by Dr. Amann, his authorized treating physician. The claimant then filed a Petition for Benefits seeking PTD benefits beginning on January 7, 2009. His petition was denied by the employer/carrier.

The claimant suffered a new injury on February 23, 2012 when his walking cane collapsed and caused him to fall. The claimant returned to Dr. Amann, who recommended an updated MRI, noting that additional treatment might be recommended depending upon the MRI results. However, Dr. Amann testified that the new injury had "not yet" changed his opinion on MMI and that it was too soon to determine whether the new injury had exacerbated Mr. Benniefield's compensable injury. In light of this testimony and because of the potential for additional treatment, the employer/carrier asserted that the claim for PTD benefits was premature.

The JCC agreed with the employer/carrier and denied PTD benefits, holding that the claimant had not established that he was at MMI because that determination could only be made after the MRI results were obtained and a determination made as to the claimant's current status.

On appeal, the 1st DCA, operating under the competent substantial evidence standard of review, noted that pursuant to § 440.02(10), Fla. Stat., the date of MMI is "the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated based upon reasonable medical probability." The claimant bears the burden of proving that he is at overall MMI or if not at overall MMI, that his disability and restrictions from which he suffers are permanent. See East v. CVS Pharmacy, Inc., 51 So. 3d 516 (Fla. 1st DCA 2010).

Once the claimant's medical condition improves as much as is reasonably expected, the claimant may be considered at MMI and entitled to PTD benefits even if he becomes a candidate for additional remedial treatment in the future. See Emanuel v. David Piercy Plumbing, 765 So. 2d 761, 762 (Fla. 1st DCA 2000) (citing Holder v. Keller Kitchen Cabinets, 610 So. 2d 1264 (Fla. 1992)).

In Benniefield, the 1st DCA reversed the JCC's finding that the claim for PTD benefits was premature because it was not supported by the record evidence. It was undisputed that Dr. Amann had placed the claimant at MMI as of January 7, 2009 and that the claimant remained at MMI, at least through the date of his subsequent fall on February 23, 2012. Although the claimant's condition could improve in the future, he had satisfied his burden of proving that he was at MMI from January 7, 2009 through February 23, 2012, the date of the second injury.

Pursuant to § 440.015, Fla. Stat., it is the intent of the legislature to ensure prompt delivery of benefits to an injured worker. For this reason, workers' compensation benefits should be paid in "real time" even if remedial treatment in the future restores the claimant's ability to work. Accordingly, the 1st DCA remanded the case to the JCC for reconsideration of the merits of the PTD claim.



This summary was prepared by Jannine Galvez of our firm.


Jannine Galvez

 

 

38 Fla. L. Weekly D781a

 

Workers' compensation -- Permanent total disability -- Maximum medical improvement -- Where claimant was placed on maximum medical improvement by his authorized treating physician, but, after claimant suffered a fall, the physician opined that additional surgery might be recommended and that the additional surgery may improve claimant's condition, judge of compensation claims erroneously found that claimant's claim for permanent total disability benefits was premature because his current status, restrictions, and future treatment were uncertain -- Claimant satisfied his burden to prove that he was at maximum medical improvement from the date of MMI through the date of claimant's fall even though he could become a candidate for surgery, and even if such remedial treatment eventually improved his condition

FRANK BENNIEFIELD, Appellant, v. CITY OF LAKELAND and CLAIMS CENTER, Appellees. 1st District. Case No. 1D12-2353. Opinion filed April 8, 2013. An appeal from an order of the Judge of Compensation Claims. Margaret E. Sojourner, Judge. Date of Accident: April 9, 2008. Counsel: Bradley G. Smith of Smith, Feddeler & Smith, P.A., Lakeland, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant. Bettina N. Carrier and Thomas Vecchio of Vecchio, Carrier & Feldman, P.A., Lakeland, for Appellees.

(PER CURIAM.) In this workers' compensation appeal, Claimant challenges the Judge of Compensation Claims' (JCC's) denial of his claim for permanent total disability (PTD) benefits on grounds that the JCC erred regarding Claimant's date of maximum medical improvement (MMI) and further erred by denying penalties, interest, costs, and attorney's fees associated with that claim. Because we agree, we reverse and remand the case to the JCC for further proceedings.

BACKGROUND

On April 9, 2008, Claimant sustained a compensable back injury and was placed on MMI on January 7, 2009, by Dr. John C. Amann, his authorized treating provider. Thereafter, Claimant filed a petition for benefits (PFB) seeking PTD benefits from January 7, 2009, and continuing, along with penalties, interest, costs, and attorney's fees. The E/C contested the claim in its entirety on various grounds.

Subsequently, on February 23, 2012, Claimant fell when his walking cane collapsed. Upon returning to Dr. Amann for evaluation, the doctor opined that a new MRI was needed to assess Claimant's condition. Dr. Amann testified that Claimant's fall had "not yet" changed his opinion on the date of MMI and that it was too soon to determine whether the fall had exacerbated his compensable injury. According to Dr. Amann, additional surgery might be recommended upon review of Claimant's MRI results; he indicated that surgery may improve Claimant's condition. In light of Dr. Amann's testimony, the E/C asserted that, because Claimant's current status, restrictions, and future treatment were uncertain, Claimant's claim for PTD benefits was premature.

In the order on review, the JCC denied Claimant's claim for PTD benefits as premature on the basis that Claimant had not established that he was at MMI. In support, the JCC acknowledged Dr. Amann's testimony that Claimant's fall had not changed his opinion regarding Claimant's MMI status, but found that, given Dr. Amann's testimony regarding the need for an MRI to determine the extent of Claimant's condition, Claimant's current status could not be determined until after the MRI. Consequently, the JCC found that Claimant had failed to meet his burden to prove that he is at MMI. Claimant timely appealed.

ANALYSIS

To the extent a JCC's order turns on a resolution of the facts, the review standard is competent substantial evidence (CSE); to the extent it involved an interpretation of law, the standard is de novo. See Mylock v. Champion Int'l, 906 So. 2d 363, 365 (Fla. 1st DCA 2005); see also Lemmer v. Urban Elec., Inc., 947 So. 2d 1196, 1198 (Fla. 1st DCA 2007) (holding JCC's finding of MMI will be affirmed if supported by CSE).

The date of MMI is statutorily defined as "the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability." See § 440.02(10), Fla. Stat. (2007). It is the claimant's burden to prove that he is at overall MMI or, if not at overall MMI, that the disability and restrictions from which he suffers are permanent. See East v. CVS Pharmacy, Inc., 51 So. 3d 516 (Fla. 1st DCA 2010). Once a claimant's medical condition has improved as much as is reasonably expected under available and recommended remedial treatments, the claimant may be considered to be at MMI and entitled to PTD benefits for continuing disability even though it is anticipated that the claimant will likely become a candidate for additional remedial treatment at some time in the future. See Emanuel v. David Piercy Plumbing, 765 So. 2d 761, 762 (Fla. 1st DCA 2000) (citing Holder v. Keller Kitchen Cabinets, 610 So. 2d 1264 (Fla. 1992) (affirming PTD award even though it was anticipated that claimant would likely become a candidate for total knee replacement)).

Here, the JCC's finding that Claimant's PTD claim was premature is not supported by the record. It is undisputed that Dr. Amann placed Claimant at MMI as of January 7, 2009. Further, it is undisputed that Claimant remained at MMI through at least the date of his fall, February 23, 2012. Although Dr. Amann testified that Claimant's condition could improve in the future if he became a candidate for surgery, Claimant satisfied his burden to prove that he was at MMI for the period from January 7, 2009 (the date of MMI), through February 23, 2012 (the date of Claimant's fall), even though Claimant later could become a candidate for surgery, and even if such remedial treatment eventually improved Claimant's condition. See Emanuel, 765 So. 2d at 762 (concluding that where medical testimony supports finding that claimant has reached MMI in real time, PTD benefits can be awarded thereafter, even if claimant later became candidate for remedial surgery to restore claimant's ability to work). This is so because workers' compensation benefits, by design, are to be paid in real time. See § 440.015, Fla. Stat. (2007) ("It is the intent of the Legislature to ensure the prompt delivery of benefits to the injured worker."). Accordingly, the JCC's finding that Claimant's PTD claim was premature is REVERSED and the case REMANDED for reconsideration of the merits of Claimant's PTD claim in accordance with this opinion. (ROBERTS, RAY, and SWANSON, JJ., CONCUR.)


* * *