Lerman v. Broward County Bd. of County Com'rs

• Decision Date: 22 December 1989
• Docket Number: No. 88-1011,88-1011
• Parties: 15 Fla. L. Weekly D49 Abraham LERMAN, Appellant, v. BROWARD COUNTY BOARD OF COUNTY COMMISSIONERS and Risk Management Division, Appellees.
• Court: Florida District Court of Appeals

Page 419

555 So.2d 419

15 Fla. L. Weekly D49

Abraham LERMAN, Appellant, v. BROWARD COUNTY BOARD OF COUNTY COMMISSIONERS and Risk Management Division, Appellees.

No. 88-1011.

District Court of Appeal of Florida,

First District.

Dec. 22, 1989.

Stuart F. Suskin, of Abrams & Suskin, North Miami Beach, for appellant.

Anthony J. Beisler, III, of Beisler and Beisler, Ft. Lauderdale, for appellees.

JOANOS, Judge.

Claimant Abraham Lerman appeals the deputy commissioner's order denying his claim for permanent total disability, limiting his temporary total disability benefits to a period of six months, and denying psychiatric care. The issues for our review are (1) whether the deputy commissioner erred in failing to award permanent total disability following maximum medical improvement, (2) whether the deputy commissioner erred in limiting temporary total disability benefits to the six months following surgery, and (3) whether the deputy commissioner erred in denying payment for psychiatric care. We reverse and remand with directions.

On August 8, 1985, in the course of his duties as a detention officer for the Broward County Sheriff's Department, claimant assisted in quelling a prison riot at the Pompano Detention Center. Specifically, claimant loaded a canvas laundry basket with heavy riot gear, and then ran, pulling the riot gear 1,060 feet in ninety-six degree heat. Claimant then helped subdue the rioting prisoners. By the time the riot was over, claimant was sweating profusely, was short of breath, and was experiencing severe chest pains. He was taken to North Broward Medical Center, where his condition was diagnosed as angina pectoris with arteriosclerotic disease. Physicians at North Broward wanted to perform an angiogram, but claimant preferred to have the procedure performed by his own physician at Miami Heart Institute. He was discharged from North Broward on August 13, 1985, and was admitted to Miami Heart Institute on August 13, 1985. The angiogram was performed, and on August 29 1985, claimant underwent double by-pass surgery.

The record reflects that previously, in 1971, claimant underwent surgery for a left ventricle aneurysm in Miami Heart Institute. He made a good recovery from the first heart surgery. On September 2, 1975, he began working for the Broward County Sheriff's Department, where he continued until his involuntary retirement on May 1, 1986. Eleven months before the accident in this case, claimant had undergone a cardiac evaluation in connection with the renewal of his pilot's license. He was pronounced free of pathology, and the license was approved.

Since the August 29, 1985, by-pass surgery, claimant has remained under the care of Dr. Berger, who has been his cardiologist since 1971. In addition, he sees Dr. Hevert, an internist, on a regular basis. Claimant has also received psychotherapy from Dr. Feldman, a clinical psychologist, for post-surgical depression. At the request of the Florida Department of Retirement, claimant was examined by Dr. Epstein, a psychiatrist, to determine his eligibility for in-line-of-duty disability retirement benefits. Dr. Epstein concluded that the work-related emotional and physical stresses which occurred on August 8, 1985, have rendered claimant permanently and totally disabled from performing his previous duties as a correction officer. Further, Dr. Epstein found that claimant was experiencing anxiety, depression, and marked resentment at the thought of being required to perform work with less status and less pay than he had achieved at the time of the industrial accident. Dr. Epstein's report states that emotional stress of this nature has contributed to claimant's cardiac symptoms, and as a consequence, he is totally and permanently disabled from performing other gainful employment, which of necessity, would involve lower status and lower pay than he had enjoyed in his work with the Sheriff's Department.

At the request of the employer and carrier, claimant was examined by another psychiatrist, Dr. Zager. Dr. Zager did not testify but his report was made a part of the record. According to Dr. Zager's report, claimant is free of psychotic thought disorders and overt delusions, and does not suffer from a major psychiatric disorder. Dr. Zager recognized claimant's reluctance to accept a menial or minimum wage position, but stated that his psychiatric disability was not an impediment to such a position. In summary, Dr. Zager deferred to claimant's treating cardiologist with regard to recommended physical limitations on his work activity, but concluded that claimant does not suffer from any major psychiatric disability that precludes employment.

In a combined psychological-rehabilitation-vocational evaluation, Dr. Feldman, claimant's treating psychologist, found that clinically claimant "demonstrated an alternatively depressed, agitated and anxiety laden personality which becomes stressful and tense when contemplating his future." Dr. Feldman said claimant's concerns centered around his realistic fear of cardiac failure or thrombosis, and his distress at being forced to work in a minimum wage vocation. Dr. Feldman's conclusions were that: (1) from a vocational point of view, claimant is permanently and totally unemployable in any position; (2) claimant had reached maximum psychological improvement, but would require periodic supportive psychotherapy to prevent him from deteriorating and reverting back to his more intense depressed, impulsive and anxious state of mind; (3) claimant's current mental state, according to the Diagnostic and Statistical Manual of Mental Disorders and the American Medical Association Guidelines to Impairment, is one of one hundred percent employment disability and thirty percent mental disability; and (4) in all likelihood, claimant's condition will deteriorate if he is forced to do menial minimum wage employment, after having achieved promotion to police lieutenant with all the emotional support and respect that such an identity and position implies.

According to Dr. Berger, claimant's treating cardiologist, claimant is no longer employable as a full-time, active police officer, and if that is the only option available to him, then he is totally disabled. Dr. Berger expressed no opinion concerning claimant's ability to perform work other than police work. Dr. Hevert, claimant's treating internist, testified that claimant has a twenty to forty-five percent physical impairment in accordance with the American Medical Association Guidelines. In March 1986, Dr. Hevert expressed the opinion that possibly claimant could perform some type of sedentary work program. However, in June 1986, after having seen claimant on several occasions since rendering his March opinion, Dr. Hevert modified that opinion to reflect that claimant is totally disabled, even for sedentary work. Dr. Hevert observed that claimant is easily stressed and agitated, and that even minor activities would stress him significantly and could aggravate his underlying cardiac condition.

Claimant's testimony reflects his belief that his doctors would not permit him to return to work. Claimant also testified that the employer/carrier had not communicated with him concerning a return to work in any capacity, and had not advised that he should be conducting a work search. Further, it is undisputed that employer/carrier offered no rehabilitative or vocational counseling or assistance.

On April 4, 1988, the deputy commissioner entered an order finding that claimant suffered a compensable injury as a result of the stressful activities involved in helping to quell a major disturbance at the detention center. However, the deputy rejected claimant's testimony regarding his psychiatric problem, as well as the opinion of claimant's clinical psychologist, Dr. Feldman, and that of examining psychiatrist, Dr. Epstein. Instead, the deputy accepted the opinion included in Dr. Zager's report, stating that he knew Dr. Zager and found that his opinion comported more with reason and logic with regard to claimant's ability to perform work other than that of a detention deputy. The order indicates that the deputy was also influenced by the fact that Dr. Zager is a medical doctor, while Dr. Feldman is a doctor of philosophy. The deputy concluded that claimant failed to establish entitlement to permanent total disability, finding that claimant could secure employment within his physical limitations and restrictions if he were motivated to return to work. In addition, the deputy expressly found that claimant had not sustained a significant emotional reaction to the industrial accident and resulting heart surgery, and therefore denied payment of Dr. Feldman's bills for psychological care. Finally, the deputy awarded temporary total disability benefits for six months following claimant's open heart surgery, but denied such benefits through the date of maximum medical improvement.

With regard to the first issue, a claimant is not required to show that he is totally physically incapacitated before a determination of permanent total disability can be made. Richardson v. City of Tampa, 175 So.2d 43, 44 (Fla.1965); Carson v. Gaineswood Condominiums, 532 So.2d 28, 32 (Fla. 1st DCA 1988). Rather, the test is whether the claimant is unable to do even light work on an uninterrupted basis. § 440.15(1)(b), Fla.Stat. (1985); Carson v. Gaineswood Condominiums, 532 So.2d at 32; Alachua County Board of County Commissioners v. Griffis, 498 So.2d 977, 979 (Fla. 1st DCA 1986). Once a claimant has established an inability to perform light work uninterruptedly, "it is incumbent upon the employer to show that suitable work is available, and if the employer fails to meet that burden, the D/C should hold that the injured worker is PTD." Wilhoit International v. Tidwell, 497 So.2d 958, 961 (Fla. 1st DCA 1986). See also Loprinzo v. Mald Corp., 429 So.2d 1363, 1365 n. 1 (Fla. 1st DCA 1983). Similarly, where...