Edward Debartolo Corp. v. Kay

• Decision Date: 15 October 1998
• Docket Number: 973504,1
• Parties: 23 Fla. L. Weekly D2342, Edward Debartolo Corp. v. Kay, (Fla.App. 1 Dist. 1998) NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. The EDWARD DEBARTOLO CORP. and GAB Business Services, Inc., Appellant, v. Marion KAY, Appellee. First District
• Court: Florida District Court of Appeals

23 Fla. L. Weekly D2342, Edward Debartolo Corp. v. Kay, (Fla.App. 1 Dist. 1998)

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

The EDWARD DEBARTOLO CORP. and GAB Business Services, Inc., Appellant,

v.

Marion KAY, Appellee.

No. 97-3504.

District Court of Appeal of Florida,

First District.

Oct. 15, 1998.

Robert I. Buchsbaum of Conroy, Simberg & Ganon, Hollywood, for Appellants.

Gerald A. Rosenthal and Randy D. Ellison of Rosenthal & Weissman, West Palm Beach, for Appellee.

PER CURIAM.

The employer and carrier appeal a final order awarding the claimant permanent and total disability benefits and granting an evaluation at a pain clinic. Because we are unable to determine whether the award of disability benefits was premature in light of the pending medical evaluation, we vacate the order and remand the case for further proceedings.

The claimant, Marion Kay, was injured during a violent altercation while employed as a security manager for the employer. He suffered an injury to his neck and the ulnar nerve in his left arm. Following a hearing, the judge of compensation claims found that the claimant had reached overall maximum medical improvement and awarded permanent and total disability benefits based on the claimant's inability to do even light work on an uninterrupted basis. The judge also granted the claimant an evaluation at a pain clinic.

The employer and carrier argue that the award of permanent and total disability benefits must be reversed because the judge did not make a finding whether the claimant's evaluation at the pain clinic was remedial or palliative in nature. It may be appropriate to provide palliative care or an evaluation for palliative care even after a finding that the claimant has reached maximum medical improvement. However, if the prospective treatment for pain is intended to be remedial in nature, the claimant is not yet at maximum medical improvement and an award of permanent and total disability benefits is premature. See Circle K Corp. v. Lackey, 637 So.2d 360 (Fla. 1st DCA 1994).

We are unable to determine from the order or the record whether the evaluation is for remedial or palliative care. The judge recognized this issue but failed to make a determination on the nature of the evaluation. Therefore, we vacate the order awarding permanent and total disability benefits and remand the case with directions for the...