Keller Kitchen Cabinets v. Holder, 88-3204

• Decision Date: 08 August 1991
• Docket Number: No. 88-3204,88-3204
• Citation: 586 So.2d 1132
• Parties: 16 Fla. L. Weekly D2078, 16 Fla. L. Weekly D2700 KELLER KITCHEN CABINETS and Alexis, Inc., Appellants, v. John HOLDER, Appellee.
• Court: Florida District Court of Appeals

Page 1132

586 So.2d 1132

16 Fla. L. Weekly D2078, 16 Fla. L. Weekly D2700

KELLER KITCHEN CABINETS and Alexis, Inc., Appellants, v. John HOLDER, Appellee.

No. 88-3204.

District Court of Appeal of Florida First District.

Aug. 8, 1991.

On Motion for Certification and Rehearing Oct. 16, 1991.

Rex A. Hurley and Steven S. Eichenblatt, of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellants.

Edward H. Hurt, Sr., of Hurt & Parrish, P.A., Orlando, Bill McCabe, of Shepherd, McCabe & Cooley, Longwood, for appellee.

PER CURIAM.

The employer/carrier appeal from an order of the judge of compensation claims which order held that the limitation period under Section 440.28, Florida Statutes (1977), is not applicable to bar the claimant's application for temporary total disability (TTD) benefits. We reverse.

Appellee/claimant suffered a compensable injury to his right knee on March 15, 1979. An order was entered in 1980 which found that appellee had reached maximum medical improvement (MMI) in February 1980 with a 40% permanent partial disability of the right lower extremity. Appellants were directed to pay 80 weeks of permanent partial disability (PPD) benefits and to provide continuing medical care. The order further stated that if in the future appellee should require a total knee replacement, this would be solely for relief of symptoms resulting from the compensable accident. This statement was stricken from the order on appeal. Keller Kitchen Cabinets v. Holder, 397 So.2d 434 (Fla. 1st DCA 1981). A dispute between the parties regarding medical care was resolved by a January 1985 order, which was not appealed and which did not address the issue of disability compensation.

Appellants paid the PPD and have provided continuing medical care up to the time of the hearing in the instant case. In March 1988 a total knee replacement, which the judge found to be necessitated by the 1979 compensable accident, ¹ was performed upon appellee. Appellee sought TTD and other benefits relating to the knee replacement and subsequent recuperation. ²

Appellants took the position that since appellee had previously reached MMI with a permanent partial impairment as found in the 1980 order, he could not obtain TTD benefits in 1988 without seeking modification of the 1980 order pursuant to Section 440.28, which provides in part:

Upon a deputy commissioner's own initiative, or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact, the deputy commissioner may, at any time prior to 2 years after the date of the last payment of compensation pursuant to any compensation order ... review a compensation case in accordance with the procedure prescribed in respect of claims in s. 440.25 and, in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation or award compensation.

Appellants asserted that since more than two years had passed since the last payment of PPD benefits, the limitation period expressed in Section 440.28 was operative to bar appellee's claim for TTD benefits.

The judge found that appellee was not required to proceed by way of modification and that his claim was therefore governed by Section 440.19(2)(a), Florida Statutes (1979), which provides that a claim for compensation is timely if filed within two years of the last furnishing of compensation or remedial treatment by the employer. As measured by this standard, appellee's claim was found to be timely because it was filed within two years of the last remedial treatment furnished to appellee by the employer. ³

We agree with appellants that appellee was required to proceed by way of modification on his TTD claim. However, we remand for determination (on this record or additional evidence) of whether facts and circumstances intervening since the original order may prevent application of the statutory bar.

The date of MMI marks the point at which no further recovery or improvement from an injury or disease can reasonably be anticipated. There is no basis for setting a date of MMI while the healing process is still continuing. Hall v. Dade County School Board, 492 So.2d 768 (Fla. 1st DCA 1986). Remedial treatment is available to a claimant who has reached MMI only when the need therefor requires recognition of a change in MMI and re-entry of temporary disability status, with or without eligibility for other benefits. Value Construction, Inc. v. Sauer, 465 So.2d 631 (Fla. 1st DCA 1985); Manns Jiffy Food Mart v. O'Neil, 453 So.2d 78 (Fla. 1st DCA 1984); Lewis v. Town & Country Auto Body Shop, 447 So.2d 403 (Fla. 1st DCA 1984). A claimant may, however, still be entitled to post-MMI palliative treatment for relief of symptoms arising from the compensable injury. Mount Sinai Medical Center v. Cardoso, 527 So.2d 875 (Fla. 1st DCA 1988); Old Cove Condo v. Curry, 511 So.2d 666 (Fla. 1st DCA 1987).

Maximum medical improvement typically marks the end of temporary disability and the beginning of permanent disability. Clyatt Memorial, Inc. v. Scott, 394 So.2d 159 (Fla. 1st DCA 1981). Temporary total disability is generally unavailable for periods after the date of MMI except as above noted upon changed condition. Coca-Cola Bottling Company v. Tunson, 534 So.2d 910 (Fla. 1st DCA 1988); Department of Offender Rehabilitation v. Godwin, 394 So.2d 1091 (Fla. 1st DCA 1981). Except to the extent that Section 440.28 permits modification, compensation orders are governed by the same principles of res judicata and estoppel as are applied to judgments of courts. Wellcraft Marine Corporation v. Turner, 435 So.2d 864 (Fla. 1st DCA 1983). ⁴ Since the 1980 order established that appellee reached MMI from his knee injury in 1980, the TTD awarded in the instant case would appear to be inconsistent with that order. Accordingly, it is only by a modification of the 1980 award, based upon the statutory grounds, that appellee can claim TTD benefits. General Electric Company v. Spann, 479 So.2d 289, 290 (Fla. 1st DCA 1985); Washington v. Dade County School Board, IRC Order 2-3694 (Feb. 8, 1979); Bishop v. Pinellas Framing & Finishing, 414 So.2d 596 (Fla. 1st DCA 1982). ⁵ In Robinson v. JDM Country Club, 455 So.2d 1077, 1079 (Fla. 1st DCA 1984), we stated:

Modification is the statutory remedy provided for a claimant whose condition has changed following entry of a prior order. "The change of condition provision is designed to afford relief to a claimant whose condition either becomes progressively worse when not anticipated by the original diagnosis or is the product of evidentiary factors not known at the time of the initial claim proceeding." General Electric Co. v. Osborne, 394 So.2d 1089, 1090 (Fla. 1st DCA 1981).

Accord, Deneault v. Alachua County School Board, 555 So.2d 909 (Fla. 1st DCA 1990).

We acknowledge the line of cases holding that a claimant who is hospitalized after MMI due to the compensable injury is entitled to TTD benefits for the period of hospitalization and the period of recuperation which follows. Lopez v. Nabisco Brands, Inc., 516 So.2d 993 (Fla. 1st DCA 1987); Delgado v. LaQuinta Motor Inns, 457 So.2d 572 (Fla. 1st DCA 1984); Atkins v. Greenhut Construction Company, 447 So.2d 268 (Fla. 1st DCA 1983); Smitty's Coffee Shop v. Florida Industrial Commission, 86 So.2d 268 (Fla.1956). See also Palm Beach County Board of County Commissioners v. Roberson, 500 So.2d 180 (Fla. 1st DCA 1986) (TTD benefits properly awarded for time spent in rehabilitation program after MMI); Emergency One, Inc. v. Williams, 431 So.2d 251 (Fla. 1st DCA 1983) (temporary disability benefits properly awarded for period following date that physician set as the date of MMI, where physician released claimant for work without restrictions but subsequently modified recommendation to impose restrictions). However, these cases are distinguishable.

In Smitty's Coffee Shop, the earliest Florida decision finding a right to TTD benefits after MMI, and the case which provides the authority for the later cases providing for post-MMI TTD benefits, the claimant proceeded under Section 440.28 in applying for the additional benefits. In Palm Beach County and Atkins, the claimant also proceeded by way of Section 440.28. In Lopez and Delgado the establishment of MMI and the claim for post-MMI TTD benefits were part of one proceeding, so Section 440.28 and the time limitations prescribed therein were not at issue. Furthermore, in Williams we directed that the order be amended to reflect termination of MMI status at the time temporary benefits were reinstated. We also observed: "The circumstances in the present case present no necessity for consideration of when an award of temporary benefits, after final adjudication of MMI, may constitute a modification of the prior order." 431 So.2d at 252, n. 1. None of these cases involved the scenario apparently presented in the instant case, in which (1) a final order has fixed a date of MMI and the parties' consequent rights and responsibilities, including the claimant's entitlement to disability benefits; and (2) after the time for modification has passed, the claimant seeks further benefits which are not contemplated by the original order and are inconsistent with the terms of that order. Accordingly, we hold that a claimant who petitions for application of the exception recognized in Smitty's after he has reached MMI, as found in a previous order, is ordinarily required to proceed by way of Section 440.28.

In the case at bar, notwithstanding the foregoing, the facts and circumstances intervening since the original order may prevent application of the statutory bar. There appears to be no question that remedial care has been provided (by order or otherwise) without interruption. Although provision of such benefits has not been deemed to be payment of "compensation" within the terms of Section...