City of Pensacola Firefighters v. Oswald, No. 97-1682

CourtCourt of Appeal of Florida (US)
Writing for the CourtBENTON; BOOTH; PADOVANO; PADOVANO
Citation710 So.2d 95
Docket NumberNo. 97-1682
Decision Date15 April 1998
Parties23 Fla. L. Weekly D1000 CITY OF PENSACOLA FIREFIGHTERS and Florida League of Cities, Appellants, v. James OSWALD, Appellee.

Page 95

710 So.2d 95
23 Fla. L. Weekly D1000
CITY OF PENSACOLA FIREFIGHTERS and Florida League of Cities, Appellants,
v.
James OSWALD, Appellee.
No. 97-1682.
District Court of Appeal of Florida,
First District.
April 15, 1998.

Page 96

Douglas F. Miller and Christopher P. Janes of Clark, Partington, Hart, Larry, Bond, Stackhouse & Stone, Pensacola, for Appellants.

Barry Silber, Pensacola, for Appellee.

BENTON, Judge.

James Oswald's employer, the City of Pensacola Firefighters, and the employer's insurer, the Florida League of Cities, appeal an order awarding Mr. Oswald permanent total disability benefits on account of an industrial accident that occurred on January 26, 1995. We reverse the award for want of substantial competent evidence that Mr. Oswald suffered a permanent impairment "of a nature and severity that would qualify an employee to receive disability income benefits under Title II or supplemental security income benefits under Title XVI of the federal Social Security Act." § 440.02(34)(f), Fla. Stat. (Supp.1994). On this point, appellants frame their argument as an attack on key fact findings in the order under review, findings which may reflect misunderstanding of a psychiatrist's testimony on deposition. We agree that findings essential to the award of benefits on Mr. Oswald's claim lack record support.

I.

The predicate for permanent total disability benefits is catastrophic injury, which by definition entails permanent impairment. See generally Woodbury v. Southland Corp., 652 So.2d 467, 469 (Fla. 1st DCA 1995)(under prior law, "find[ing] both a zero percent impairment and impos[ing] restrictions" held to be inconsistent); Rodriguez v. Albertson's, 614 So.2d 678, 679 (Fla. 1st DCA 1993)(stating "conclusion that a claimant has reached maximum medical improvement with no permanent impairment is irreconcilable with a conclusion that the claimant has physical restrictions on account of the injury").

Page 97

Wage loss benefits (on account of permanent partial disabilities) allowed under statutes formerly in force could not be awarded in the absence of some permanent impairment. See Stanley v. Okeelanta Corp., 575 So.2d 734, 735 (Fla. 1st DCA 1991); Griffith v. McDonalds, 526 So.2d 1032, 1033 (Fla. 1st DCA 1988).

The final order does not find that Mr. Oswald has reached maximum medical improvement or assign a permanent impairment rating. Evidence adduced at the merits hearing on March 20, 1997, might have supported a finding that Mr. Oswald had improved physically as much as he was going to. But his psychiatrist's testimony that, when he last saw Mr. Oswald, it was "too soon to tell" whether psychiatric problems "might permanently restrict him to certain types of employment" went unrebutted. The order under review, dated April 9, 1997, did find that "[f]rom March 25, 1995, and continuously thereafter, the claimant has been indemnified by the e/c and paid temporary total disability benefits."

Under the law in effect before January 1, 1994, an award of permanent total disability benefits was generally deemed premature if it preceded maximum medical improvement. See Corral v. McCrory Corp., 228 So.2d 900 (Fla.1969); Anderson & Padgett Sawmill v. Collins, 686 So.2d 795 (Fla. 1st DCA 1997); Department of Offender Rehabilitation v. Godwin, 394 So.2d 1091 (Fla. 1st DCA 1981).

"Date of maximum medical improvement" means 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.

§ 440.02(8), Fla. Stat. (Supp.1994). The City of Pensacola Firefighters and Florida League of Cities argue that, even after the amendments that took effect on January 1, 1994, the Workers' Compensation Law precludes awarding permanent total disability benefits to a claimant who has not attained maximum medical improvement.

We conclude, however, that amendments that took effect on January 1, 1994, chapter 93-415, at 62, Laws of Florida, have given rise to a narrow but necessary exception to the venerable rule that, where a "claimant is not yet at MMI, ... the award of any permanent disability benefits ... [must] be premature." Collins, 686 So.2d at 796. Ordinarily injured employees remain ineligible, until they attain maximum medical improvement, for an award of permanent total disability benefits under Florida's Workers' Compensation Law (even if entitled on account of an industrial accident to receive social security disability income benefits under Title II or supplemental security income benefits under Title XVI of the federal Social Security Act). Because of amendments effective January 1, 1994, an injured worker is no longer entitled to receive temporary benefits for more than two years. Ch. 93-415, § 20, at 120, 128, Laws of Fla., amending section 440.15(2) and (4), Fla. Stat.

Effective January 1, 1994, section 440.15(3)(a)4., Florida Statutes (Supp.1994), not only maintains the requirement--now applicable only when maximum medical improvement occurs more than six weeks before the two-year limit for temporary benefits expires--that any permanent impairment rating be assigned "[a]fter the employee has been certified by a doctor as having reached maximum medical improvement," but also requires--in the event maximum medical improvement has not occurred earlier--that any permanent impairment be assigned a rating "6 weeks before the expiration of temporary benefits." Ch. 93-415, § 20, at 122, Laws of Fla., amending section 440.15(3)(a)4., Fla. Stat. The definition of "permanent impairment" in section 440.02(19), Florida Statutes, although amended effective January 1, 1994, chapter 93-415, § 2, at 72, Laws of Florida, still requires a determination of the status quo once maximum medical improvement is reached:

any anatomic or functional abnormality or loss determined as a percentage of the body as a whole, existing after the date of maximum medical improvement, which results from the injury.

In assigning a permanent impairment rating because temporary benefits must come to an

Page 98

end, a qualified professional has to anticipate the employee's maximum medical improvement and use professional judgment--first to decide whether the employee will be permanently impaired once maximum medical improvement has been attained and, if so, then--to assign an impairment rating prospectively.

Although we assume for purposes of decision that Mr. Oswald's claim for permanent total disability benefits became ripe after he had received temporary benefits for ninety-eight weeks, to be eligible for permanent total disability benefits, an employee whose temporary benefits have run out--or are expected to do so imminently--must be able to show not only total disability upon the cessation of temporary benefits but also that total disability will be "existing after the date of maximum medical improvement." § 440.02(19), Fla. Stat. (Supp.1994). We find no such proof in the present case.

By the time of the merits hearing, all but a week of the two years during which Mr. Oswald could receive temporary benefits had run. He was therefore entitled to prove, if he could, that he would be permanently disabled "after the date of maximum medical improvement." We reject appellees' contention that a claimant whose eligibility for temporary benefits is to expire in less than six weeks cannot establish entitlement...

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29 practice notes
  • Westphal v. City of St. Petersburg, No. 1D12–3563.
    • United States
    • Court of Appeal of Florida (US)
    • September 23, 2013
    ...the potential problems created by the 104–week time limit on temporary disability benefits in City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 98 (Fla. 1st DCA 1998). The claimant in that case was nearing the end of his eligibility for temporary benefits but he had not reached maximu......
  • Matrix Emp. Leasing ,Inc. v. Hadley, No. 1D09–3360.
    • United States
    • Court of Appeal of Florida (US)
    • January 6, 2012
    ...reaching MMI. We agree with the E/C and conclude this case is controlled by our decision in City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998), and its progeny. Upon consideration of this case en banc,1 we decline to depart from that settled precedent. Accordingly, w......
  • Westphal v. City of St. Petersburg, No. SC13–1930
    • United States
    • United States State Supreme Court of Florida
    • June 9, 2016
    ...denied the claim for permanent total disability benefits based on its interpretation of City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998), and Matrix Employee Leasing, Inc. v. Hadley, 78 So.3d 621 (Fla. 1st DCA 2011). In Oswald, the First District held that to recei......
  • Matrix Emp. Leasing, Inc. v. Hadley, CASE NO. 1D09-3360
    • United States
    • Court of Appeal of Florida (US)
    • November 29, 2011
    ...reaching MMI. We agree with the E/C and conclude this case is controlled by our decision in City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998), and its progeny. Upon consideration of this case en banc,1 we decline to depart from that settled precedent. Accordingly, ......
  • Request a trial to view additional results
29 cases
  • Westphal v. City of St. Petersburg, No. 1D12–3563.
    • United States
    • Court of Appeal of Florida (US)
    • September 23, 2013
    ...the potential problems created by the 104–week time limit on temporary disability benefits in City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 98 (Fla. 1st DCA 1998). The claimant in that case was nearing the end of his eligibility for temporary benefits but he had not reached maximu......
  • Matrix Emp. Leasing ,Inc. v. Hadley, No. 1D09–3360.
    • United States
    • Court of Appeal of Florida (US)
    • January 6, 2012
    ...reaching MMI. We agree with the E/C and conclude this case is controlled by our decision in City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998), and its progeny. Upon consideration of this case en banc,1 we decline to depart from that settled precedent. Accordingly, w......
  • Westphal v. City of St. Petersburg, No. SC13–1930
    • United States
    • United States State Supreme Court of Florida
    • June 9, 2016
    ...denied the claim for permanent total disability benefits based on its interpretation of City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998), and Matrix Employee Leasing, Inc. v. Hadley, 78 So.3d 621 (Fla. 1st DCA 2011). In Oswald, the First District held that to recei......
  • Matrix Emp. Leasing, Inc. v. Hadley, CASE NO. 1D09-3360
    • United States
    • Court of Appeal of Florida (US)
    • November 29, 2011
    ...reaching MMI. We agree with the E/C and conclude this case is controlled by our decision in City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998), and its progeny. Upon consideration of this case en banc,1 we decline to depart from that settled precedent. Accordingly, ......
  • Request a trial to view additional results

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