Hewett v. Town of Mayo, 91-3396
| Decision Date | 17 February 1993 |
| Docket Number | No. 91-3396,91-3396 |
| Parties | 18 Fla. L. Week. D558 Kenneth Wayne HEWETT, Appellant/Cross Appellee, v. TOWN OF MAYO, State of Florida, and United States Fidelity & Guaranty Co., Appellees/Cross Appellants. |
| Court | Florida District Court of Appeals |
Paul D. Srygley, Tallahassee, for appellant/cross appellee.
Edward S. Mallow, David A. McCranie of McConnaughhay, Roland, Maida, Cherr & McCranie, P.A., Jacksonville, for appellees/cross appellants.
Appellant, Kenneth Wayne Hewett, who was the claimant below, appeals from a workers' compensation order in which the judge of compensation claims (JCC) found him to be at maximum medical improvement (MMI) with no permanent impairment (PI) as of February 9, 1990, and denied wage loss (WL) benefits after February 9, 1990, due to his lack of PI. In that same order, however, the JCC also directed the employer/carrier (E/C) to provide claimant with a weight reduction program so that "significant evaluation" could be made of claimant's neck and back problems, and held appellant's claim for orthopedic evaluation and/or treatment "in abeyance pending reduction of claimant's weight sufficient to conduct a proper examination." We conclude that the order contains internal inconsistencies and therefore reverse and remand for clarification.
MMI is the date after which no recovery or improvement can be reasonably anticipated. Kirkland v. Harold Pratt Paving, Inc., 518 So.2d 1320, 1323 (Fla. 1st DCA1987), review denied, 525 So.2d 878 (Fla.1988). There is competent, substantial evidence in the form of Dr. Mouat's testimony to sustain the JCC's finding of MMI with no PI. Dr. Mouat testified that MRIs were taken of claimant's neck and back in January and February 1990, and that such tests showed only mild wear and tear and arthritic change not associated with the industrial accident. He opined that claimant was at MMI on February 9, 1990, that no restrictions were required, and that he could not define any impairment under the AMA Guides. If the JCC had merely adopted Dr. Mouat's testimony and denied all appellant's claims, we would be required to affirm.
The problem in this case arises because the JCC, while determining claimant to be at MMI with no PI, inconsistently found that before "significant evaluation" of claimant's neck and back problems could occur, claimant needed to be placed on a weight reduction program. Moreover, the JCC held appellant's claim for orthopedic evaluation and/or treatment "in abeyance pending reduction of the claimant's weight sufficient to conduct a proper examination." The JCC's conditional approval of further evaluation and treatment undermines his determination of MMI in that if no recovery or improvement can reasonably be anticipated, we cannot understand why the JCC ordered weight loss treatment for the purpose of evaluating claimant's condition and refused to rule upon the claim for orthopedic evaluation or treatment. 1
Based upon these inconsistencies, w...
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