Olmo v. Rehabcare Starmed/Srs, 1D05-4393.

• Court: Court of Appeal of Florida (US)
• Citation: 930 So.2d 789
• Docket Number: No. 1D05-4393.,1D05-4393.
• Parties: Elizabeth OLMO, Appellant, v. REHABCARE STARMED/SRS, Appellees.
• Decision Date: 31 May 2006

930 So.2d 789 Elizabeth OLMO, Appellant,
v.
REHABCARE STARMED/SRS, Appellees. No. 1D05-4393. District Court of Appeal of Florida, First District. May 31, 2006.

Page 790

Donald J. Magee, Esquire of the Law Offices of Attridge, Cohen & Lucas, P.A., New Port Richey, for Appellant.

A. Dawn Hayes, Esquire of A. Dawn Hayes & Associates, P.A., Tampa, for Appellees.

BENTON, J.

Elizabeth Olmo appeals the denial of her petition for permanent total workers' compensation disability benefits. We agree with her contention that her claim for such benefits was not res judicata, reverse the order dismissing her claim on that basis, and remand for determination of the claim on the merits.

I.

The order under review addresses the interplay between two important principles. The first, designed to discourage "piecemeal litigation," has been stated this way: "A workers' compensation claimant

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is barred by the doctrine of res judicata from raising a claim that he was entitled to a benefit, where he could have but failed to litigate the issue of his right to that benefit in prior proceedings." Scotty's Hardware, Inc. v. Northcutt, 883 So.2d 859, 860-61 (Fla. 1st DCA 2004). The second, designed to avoid decisions about a claimant's "permanent" status before the picture is clear, was recently stated this way:

[W]e have consistently held that a claim for impairment or permanent disability benefits made before a claimant has reached MMI[¹] or received 98 weeks of temporary benefits is premature. See, e.g., G. Pierce Woods Mem'l Hosp. v. Lewis, 879 So.2d 643, 644 (Fla. 1st DCA 2004) (finding claim for PTD premature absent a showing of MMI or applicable "exception to the MMI requirement"); Metro. Title & Guar. Co. v. Muniz, 806 So.2d 637, 637 (Fla. 1st DCA 2002) ("Until an impairment rating is assigned, based on the claimant's present or expected date of maximum medical improvement, he is not entitled to permanent disability benefits."); Okeechobee Health Care v. Collins, 726 So.2d 775, 777 n. [4] (Fla. 1st DCA 1998) ("Until maximum medical improvement or until the expiration of all temporary benefits is imminent, assigning [an impairment] rating serves no purpose under the statute.").

Cooper v. Buddy Freddy's Rest., 889 So.2d 125, 126 (Fla. 1st DCA 2004). Here, Ms. Olmo sought authorization for back surgery by filing a petition after her entitlement to temporary disability benefits had expired. Because she did not simultaneously request and litigate entitlement to permanent total disability benefits, the judge of compensation claims later ruled she could not raise the claim separately. Explaining this ruling, the order under review states that "a claim for [permanent total disability benefits] might have been found to have been premature at the previous hearing; however, there was no impediment to bringing it then."

II.

Ms. Olmo was at work for Rehabcare Starmed (Rehabcare) as a certified nurse's assistant on May 29, 2001, when she injured her back while assisting a patient. As a consequence, Rehabcare and its insurance carrier, Specialty Risk Services, Inc. (SRS), began paying temporary disability benefits, after which they paid approximately six months of permanent impairment benefits. Rehabcare and SRS authorized care by several doctors, including Paul Zak, an orthopedic surgeon. In April of 2002, Dr. Zak recommended a lumbar discectomy and fusion at the L5-S1 level, but Rehabcare and SRS refused to authorize the surgery.

When Ms. Olmo filed a petition for benefits in February of 2004, requesting "temporary total or temporary partial disability (TTD/TPD) benefits from August 19, 2003, an [independent medical examination] and authorization of the surgery recommended by Dr. Zak," Rehabcare and SRS responded that 104 weeks of temporary benefits had already been paid, that an independent medical examination was being scheduled, and that surgery would not be authorized because they attributed the need for surgery to the claimant's preexisting condition, not to her industrial accident. By the time of the hearing on December 7, 2004, the only issue remaining to be tried

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was whether the back surgery Dr. Zak had recommended would be authorized. On December 14, 2004, the judge of compensation claims ruled against Rehabcare and SRS on this issue, requiring them to authorize the back surgery. Dr. Zak performed the surgery on June 13, 2005.

Meanwhile, on February 20, 2005, after her surgery had been authorized but before the surgery took place, Ms. Olmo filed another petition for benefits (the second petition), seeking permanent total disability benefits from June 1, 2003, and continuing. By this time, she was no longer eligible for any temporary indemnity benefits: She had been paid temporary total disability benefits from the date of her accident until 104 weeks expired on May 30, 2003; and permanent impairment benefits from June 1, 2003 until December 1, 2003.

When the second petition came on for hearing on August 5, 2005, the parties stipulated that Ms. Olmo had not by then reached maximum medical improvement; but that, when she did reach maximum medical improvement, she would have a permanent impairment. Rehabcare and SRS argued, however, that the claim for...