Florida Transport 1982, Inc. v. Quintana
| Decision Date | 09 February 2009 |
| Docket Number | No. 1D08-3213.,1D08-3213. |
| Citation | 1 So.3d 388 |
| Parties | FLORIDA TRANSPORT 1982, INC. and Associated Industries Insurance Company, Inc., Appellants, v. Carlos QUINTANA, Appellee. |
| Court | Florida District Court of Appeals |
Mary Ann Stiles of Stiles, Taylor & Grace, P.A., Tampa, and Rayford H. Taylor of Stiles, Taylor and Grace, P.A., Atlanta, for Appellants.
Mark L. Zientz of Law Offices of Mark L. Zientz, P.A., Miami, for Appellee.
In this workers' compensation appeal, Florida Transport 1982, Inc. and Associated Industries Insurance Company, Inc. (jointly, the employer/carrier), challenge the order of the Judge of Compensation Claims (JCC) on three grounds. The employer/carrier argues that: (1) the award of permanent total disability (PTD) benefits to Carlos Quintana, the claimant and appellee, was premature; (2) section 440.13, Florida Statutes, did not require the employer/carrier to provide claimant with the choice of two additional psychiatrists; and (3) there was no basis to award claimant penalties, interest, costs, and attorney's fees. We agree and reverse on all three grounds.
Claimant sustained a compensable chemical burn to his left foot. He received treatment for this injury, reached physical maximum medical improvement (MMI), and was paid 104 weeks of temporary benefits. Claimant developed psychiatric difficulties, however, and requested treatment. The employer/carrier authorized a psychiatrist to treat claimant. Claimant declined to attend the appointment and requested a list of three new psychiatrists.
Both claimant and the employer/carrier obtained psychiatric independent medical exams. Both psychiatrists opined that claimant required treatment and was not at psychiatric MMI. Claimant's expert, whose testimony was accepted by the JCC, testified that claimant was not capable of working from a psychiatric standpoint at the time of his exam, although he did anticipate improvement with treatment.
The JCC, expressly relying on Emanuel v. David Piercy Plumbing, 765 So.2d 761 (Fla. 1st DCA 2000), found claimant to be entitled to "temporary" PTD benefits. Although the parties offered conflicting vocational testimony as to the effect of claimant's physical injury on his ability to work, the JCC made no findings in this regard; and based the PTD award solely on claimant's psychiatric condition. The JCC also found that the employer/carrier authorized psychiatric treatment, but that claimant requested his one-time change in physician, and, based on section 440.13(2)(f), Florida Statutes, ruled claimant was entitled to choose from three unaffiliated physicians. Because the employer/carrier had offered only one, the JCC directed it to offer claimant two more physicians from whom to choose. Finally, the JCC awarded claimant penalties, interest, costs, and attorney's fees.
An award of PTD benefits is generally deemed premature before an injured worker reaches MMI. See Anderson & Padgett Sawmill v. Collins, 686 So.2d 795 (Fla. 1st DCA 1997). An exception was created, however, with the statutory amendments to sections 440.15(2) and (4), Florida Statutes, effective January 1, 1994. See Ch. 93-415, § 20, at 118, Laws of Fla. Pursuant to those amendments, if a claimant is not at overall MMI after receiving 104 weeks of temporary benefits, the claimant may nevertheless establish entitlement to PTD benefits by proving total disability due to an impairment "existing after the date of [MMI]," as a result of at least one of the claimant's injuries. See City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 98 (Fla. 1st DCA 1998). In other words, a claimant can still prove entitlement to PTD before reaching overall MMI, if the claimant can prove he is PTD from one of his injuries standing alone. Id. at 100; see also McFarlane, Ferguson v. Whaley, 641 So.2d 173 (Fla. 1st DCA 1994) ().
Here, claimant had two medical conditions resulting from the April 2003 accident: a physical injury, for which medical MMI was reached, and a psychiatric injury, for which he was not at medical MMI. Claimant was at statutory MMI because he had received 104 weeks of temporary benefits. Thus, a claim for PTD based on claimant's physical condition alone could be made. However, the JCC declined to address whether claimant was PTD based solely on his physical injuries. Instead, the JCC relied on Emanuel to award "temporary" PTD benefits based solely on claimant's psychiatric condition.
The JCC's reliance on Emanuel to award temporary PTD benefits was error because Emanuel does not authorize temporary PTD benefits. In Emanuel, the claimant reached MMI from the only injury attributable to the accident, but was not able to sustain employment. See Emanuel, 765 So.2d at 762. A year and a half later, he underwent a total knee replacement, and was subsequently released to return to work with restrictions. Id. In Emanuel, we held that, based on the undisputed record evidence, the JCC erred in not awarding PTD benefits from the date of MMI. Id. Accordingly, this court reversed the JCC's denial of PTD benefits for the time period between MMI and the claimant's release to return to work. Id. It should be emphasized that the award of PTD benefits for that time period in Emanuel was not a "temporary" award. Rather, it was based on the claimant's PTD status post-MMI. Even though he was subsequently able to return to work after surgery, he met the statutory requirements for PTD benefits during the one and a half year time period. Id. at 762-763. Thus, Emanuel does not support the award of temporary benefits in the case before us.
In addition, the JCC erred because the record contains no competent, substantial evidence to support the JCC's award of PTD benefits based solely on claimant's psychiatric condition.
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