Lemmer v. Urban Elec., Inc.

• Decision Date: 25 January 2007
• Docket Number: No. 1D05-6098.,1D05-6098.
• Citation: 947 So.2d 1196
• Parties: Arron LEMMER, Appellant, v. URBAN ELECTRICAL, INC. and The Hartford, Appellees.
• Court: Florida District Court of Appeals

947 So.2d 1196

Arron LEMMER, Appellant, v. URBAN ELECTRICAL, INC. and The Hartford, Appellees.

No. 1D05-6098.

District Court of Appeal of Florida, First District.

January 25, 2007.

Patrick J. Deese, Melbourne; Bill McCabe, Longwood, for Appellant.

William H. Rogner of Hurley, Rogner, Miller, Cox & Waranch & Westcott, P.A., Winter Park, for Appellees.

PER CURIAM.

Claimant, Arron Lemmer, seeks review of an order of the judge of compensation claims ("JCC") in which the JCC denied each of his claims for benefits. On appeal, claimant raises five issues, only three of which merit discussion. In his first issue, claimant argues that the JCC's finding that he reached overall maximum medical improvement ("MMI") is not supported by competent, substantial evidence. In his second issue, claimant challenges the JCC's denial of his claim for temporary partial disability ("TPD") benefits. In his fifth issue, claimant contends that the JCC erred in denying his claim for attorney's fees, costs, interest, and penalties. For the reasons expressed herein, we reverse the JCC's order and remand for further proceedings.

Claimant was injured in a compensable car accident on January 14, 2003, while working for the employer, Urban Electrical, Inc., as an electrician. Claimant sought, among other things, TPD benefits for the periods between June 17, 2004, and September 6, 2004, and December 13, 2004, through August 9, 2005.^* Another issue to be decided by the JCC was the correct determination of MMI. In the Final Merit Order, the JCC accepted Dr. Desai's MMI date of February 25, 2004. It is undisputed that Dr. Desai, an orthopedic surgeon, treated claimant for his compensable right knee injury. With respect to when claimant reached MMI for his compensable back condition, the JCC noted that claimant had not sought any remedial care for his back, that he had not returned to see his authorized treating physician since March 7, 2005, and that "[o]ne can only assume the claimant's condition was fairly stable, that he had neither the inclination nor the need for remedial care during that time, and had for a prolonged period of time had reached MMI."

With regard to claimant's entitlement to TPD benefits, the JCC determined that claimant failed to establish the requisite causal connection between his wage loss and his injuries and denied the claim. In support of this ruling, the JCC found in part, "For the last 1 1/2 to 2 years of his treatment, Dr. Cohen did not document any work restrictions." The JCC also found, "There was no testimony that the claimant had been fired or laid off due to his inability to perform the job, or that the claimant had been forced to decrease hours or leave work early during the time periods in question." The JCC also denied claimant's claim for attorney's fees, costs, interest, and penalties. This appeal followed.

As to the JCC's MMI determination, claimant acknowledges that his orthopedic surgeon placed him at MMI for his right knee condition on February 25, 2004. He argues, however, that the JCC's determination that he reached overall MMI is not supported by competent, substantial evidence. We agree.

MMI constitutes "the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability." § 440.02(10), Fla. Stat. (2002). A finding of MMI is precluded where treatment is being provided with a reasonable expectation that it will bring about some degree of recovery, even if treatment ultimately proves ineffective. Rolle v. Picadilly Cafeteria, 573 So.2d 94, 97 (Fla. 1st DCA 1991). The question of whether a claimant has reached MMI is a medical question and should be based on a clear, explicit expression in the medical records or medical opinion...