Amfesco Duramil Div. v. Guzman

Citation596 So.2d 732
Decision Date24 March 1992
Docket NumberNo. 91-1333,91-1333
CourtFlorida District Court of Appeals
PartiesAMFESCO DURAMIL DIVISION, Lindsey & Newsom Claims Management, Inc. Servicing Company and Greater New York Mutual Insurance Company, Appellants, v. Pastor GUZMAN, Appellee. 596 So.2d 732, 17 Fla. L. Week. D827

Michael A. Morris, and Jonathan M. Sabghir, of Vernis & Bowling, P.A., Miami, for appellants.

David A. Snyder, and Richard J. Dolan, II, of the law offices of David A. Snyder, Miami, for appellee.

ERVIN, Judge.

Appellants, Amfesco Duramil Division and Lindsey & Newsom Claims Management Inc. Servicing Company (E/C), seek review of a final compensation order which, among other things, awarded permanent total disability (PTD) and attendant care (AC) benefits to claimant, Pastor Guzman. The E/C contends that the judge of compensation claims (JCC) erred by (1) concluding claimant was permanently and totally disabled when it was undisputed he had not yet reached maximum medical improvement (MMI) from a psychiatric standpoint, (2) awarding AC retroactive to the date of injury, and (3) awarding AC benefits for the balance of claimant's life. We affirm.

Addressing appellants' first issue, the general rule is that when a claimant has suffered both a psychiatric and orthopedic injury, as is the case here, permanent benefits may not be awarded until the claimant reaches MMI as to both disorders. Winn Dixie Stores, Inc. v. Grubb, 570 So.2d 1371, 1373 (Fla. 1st DCA 1990); Copeland Steel v. Miles, 536 So.2d 1179, 1181 (Fla. 1st DCA 1989); Honeycutt v. Boswell Voyle Appliances, 522 So.2d 937, 939 (Fla. 1st DCA 1988); Setzer's Constr. Co. v. Hebeishy, 521 So.2d 365, 366 (Fla. 1st DCA 1988); Martin-Marietta Corp. v. Vargas, 472 So.2d 833, 833 (Fla. 1st DCA 1985). An exception to this rule exists, however, when the evidence clearly shows that the claimant is PTD based solely on his or her physical injury. See John Barley Memorial v. Gillam, 550 So.2d 1179 (Fla. 1st DCA 1989). Because there is competent, substantial evidence (CSE) in the record to support a determination that claimant is PTD based on his physical condition without regard to his psychiatric disorder, we affirm the JCC's awards of both PTD and supplemental PTD benefits.

Turning to the second issue regarding the retroactive award of AC benefits, as a general rule AC benefits may be awarded retroactively only if the E/C has notice that such care is due. ZEP Mfg. v. Gratzer, 545 So.2d 965, 965 (Fla. 1st DCA 1989). However, if the E/C fails to object or raise the defense of lack of notice before the JCC, the defense will be deemed to have been waived on appeal and the retroactive award will be...

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3 cases
  • Walt Disney World Co. v. McCrea
    • United States
    • Florida District Court of Appeals
    • April 17, 2000 the nature of McCrea's injury or process of recovery may require, consistent with section 440.13(2)(a). See Amfesco Duramil Div. v. Guzman, 596 So.2d 732 (Fla. 1st DCA 1992); Ramada Inn S. Airport v. Lamoureux, 578 So.2d 48 (Fla. 1st DCA Turning to McCrea's cross-appeal, we conclude the ......
  • McFarlane, Ferguson v. Whaley
    • United States
    • Florida District Court of Appeals
    • August 11, 1994
    ...of the claimant's psychiatric condition. See Crews v. Hussman Refrig., 616 So.2d 610 (Fla. 1st DCA 1993); Amfesco Duramil Division v. Guzman, 596 So.2d 732 (Fla. 1st DCA 1992); John Barley Memorial v. Gillam, 550 So.2d 1179 (Fla. 1st DCA The employer/carrier contend that the cited cases req......
  • Crews v. Hussman Refrigeration
    • United States
    • Florida District Court of Appeals
    • April 8, 1993
    ... ... Amfesco ... Duramil Division v. Guzman, 596 So.2d 732 (Fla. 1st DCA 1992); John ... ...

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