Daws Mfg. Co., Inc. v. Ostoyic

• Decision Date: 31 March 2000
• Docket Number: No. 1D98-1102.,1D98-1102.
• Citation: 756 So.2d 175
• Parties: DAWS MANUFACTURING CO., INC. and CNA Insurance Group, Appellants, v. Carolyn OSTOYIC, Appellee.
• Court: Florida District Court of Appeals

756 So.2d 175

DAWS MANUFACTURING CO., INC. and CNA Insurance Group, Appellants, v. Carolyn OSTOYIC, Appellee.

No. 1D98-1102.

District Court of Appeal of Florida, First District.

March 31, 2000.

Kraig N. Johnson of Zimmerman, Suffield, Kiser & Sutcliffe, P.A., Orlando, for Appellants.

Barry Silber, Pensacola, for Appellee.

VAN NORTWICK, J.

In this workers' compensation appeal, Daws Manufacturing Co., Inc., and CNA Insurance Group (jointly, the employer and carrier), challenge an order granting permanent total disability (PTD) benefits from February 7, 1997, and continuing thereafter for so long as the claimant remains permanently and totally disabled; and granting temporary total disability benefits and medical treatment by a pain management specialist and a psychiatrist. For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings.

There is no dispute that Carolyn Ostoyic sustained an injury to her lower back on March 22, 1996, while lifting boxes onto a shelf overhead. She was authorized to receive treatment at a walk-in center and, thereafter, treatment by an orthopedic surgeon, William Smith, M.D. Dr. Smith diagnosed a herniated disk. Ostoyic was treated conservatively and was returned to work. She suffered a second workplace injury to her back on May 17, 1996, when she was struck in the back by a co-worker carrying pieces of metal. She was again treated by Dr. Smith, who placed the claimant at maximum medical improvement (MMI) on January 21, 1997, with a 7% impairment to the body as a whole.

After the injuries to her back, Ostoyic sought authorization for psychiatric treatment and for treatment by a pain management specialist other than the specialist authorized by the carrier, whom Ostoyic claimed had not afforded relief to her. While these requests were at first contested, prior to the merits hearing, the employer and carrier agreed to authorize treatment by a psychiatrist and an alternate pain management specialist.

On March 17, 1997, Ostoyic filed a claim for indemnity benefits. Following a hearing, the JCC entered an order finding that Ostoyic had proved entitlement to such benefits. In the order under review, the JCC commented extensively on the changes to chapter 440, Florida Statutes, adopted by chapter 93-415, Laws of Florida. The JCC concluded that "it is doubtful that the Legislature intended to require the determination of PTD under F.S. 440.02(34)(f)(1994) be made after attaining overall MMI or 104 weeks [of temporary disability benefits], whichever occurs first." (Emphasis in original). The JCC found that Ostoyic had proved that she was eligible for an award of social security disability benefits given the evidence regarding her psychiatric condition following the workplace accidents. Thus, the JCC awarded PTD benefits without a finding that Ostoyic had reached maximum medical improvement (MMI) as to that psychiatric condition, thereby rejecting the argument of the employer and carrier that such an award was premature.

In the case before us, the JCC did not have the benefit of our decision in City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 100 (Fla. 1st DCA 1998), where we explained that to establish entitlement to permanent total disability indemnity benefits under the revised version of chapter 440 which went into effect on January 1, 1994, a claimant must prove total disability on account of impairment existing after the date of maximum medical improvement. Ostoyic has conceded in her arguments made on appeal that the record on appeal does not establish that she had reached psychiatric MMI or that she had been in receipt of temporary benefits for ninety-eight weeks to be eligible for PTD benefits under the exception to the "venerable rule" that permanent disability benefits are premature if claimant is not yet at MMI. See City of Pensacola Firefighters, 710 So.2d at 97. Nevertheless, Ostoyic urges that the award of PTD can be upheld on the ground that she was entitled to an adjudication of PTD benefits by...