Rivendell of Ft. Walton v. Petway

• Decision Date: 30 December 2002
• Docket Number: No. 1D01-4445.,1D01-4445.
• Citation: 833 So.2d 292
• Parties: RIVENDELL OF FT. WALTON and Gallagher Bassett Services, Inc., Appellants, v. Susan PETWAY, Appellee.
• Court: Florida District Court of Appeals

833 So.2d 292

RIVENDELL OF FT. WALTON and Gallagher Bassett Services, Inc., Appellants, v. Susan PETWAY, Appellee.

No. 1D01-4445.

District Court of Appeal of Florida, First District.

December 30, 2002.

Mary E. Cruickshank and Jacquelyn Lewis Newman, of DuBois & Cruickshank, P.A., Tallahassee, for Appellants. Barry Silber, Pensacola, for Appellee.

BROWNING, J.

Employer/Carrier appeal a final order awarding permanent total disability (PTD) benefits to the appellee, Susan Petway (Claimant). They contend it was error to award PTD benefits where the uncontradicted medical evidence established that she had not yet reached maximum medical improvement (MMI) from a psychiatric standpoint and that she was likely to improve with psychiatric care and treatment. We affirm the provision of appropriate benefits for Claimant's compensable low back injury and the finding of her entitlement to psychiatric treatment and care under Dr. Doheny's direction. We reverse, as premature, the award of PTD benefits. Metropolitan Title & Guar. Co. v. Muniz, 806 So.2d 637 (Fla. 1st DCA 2002); Chan's Surfside Saloon v. Provost, 764 So.2d 700 (Fla. 1st DCA 2000) (reversing award of PTD benefits absent competent substantial evidence that claimant had reached psychiatric MMI or would remain permanently and totally impaired when she did reach MMI); City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998).

On October 22, 1995, Claimant worked as a recreational therapist at a residential in-patient psychiatric facility. On that date, she injured her right knee when she sustained a hard fall while playing basketball with adolescent patients. That injury was accepted as compensable. Employer/Carrier paid temporary total disability (TTD) benefits until October 22, 1997, and thereafter paid impairment benefits pursuant to section 440.15(3)(a), Florida Statutes (1995), based on orthopedic surgeon Dr. Macey's 9% permanent partial impairment rating. TTD indemnity benefits were terminated upon the expiration of the 104-week time limit under section 440.15(2)(a), Florida Statutes (1995).

By January 1998, Claimant complained of low back problems, which she contended were related to her October 1995 industrial accident. Employer/Carrier initially provided treatment for the back condition but waited over a year to controvert the compensability of that condition, asserting it was not causally related to her compensable industrial accident. When they elected to provide medical care for Claimant's back complaints, Employer/Carrier did not file the required "pay and investigate" notice under section 440.20(4), Florida Statutes (1995).

In Summer 1998, Claimant hired an attorney to represent her in her claims against Employer/Carrier. At about the same time, Claimant developed symptoms of depression allegedly arising from the industrial accident; she sought a psychiatric evaluation, which Employer/Carrier initially resisted.

On November 12, 1998, Claimant filed a petition with the Division of Workers' Compensation alleging injuries to her knee and back and seeking temporary indemnity benefits; PTD benefits from October 12, 1997, the alleged date of MMI; authorization of an alternate orthopedic surgeon to treat her knee; authorization of a neurosurgeon; authorization of a pain management specialist; and authorization of a psychiatrist to evaluate and, if necessary, treat her. The petition clearly indicated Claimant was seeking benefits based on both a right knee injury and a back injury. Her January 4, 1999, amended petition requested the same benefits. Employer/Carrier filed a February 11, 1999, notice of denial stating that independent medical examinations (IMEs) had been set with Drs. Doheny and Benson.

Dr. Benson, a board-certified psychiatrist, was deposed on December 1, 1999. Dr. Benson testified that he had performed an IME of Claimant on March 25, 1999, at Employer/Carrier's request. The doctor's impression was that Claimant had experienced a substantial deterioration in her mood and had a pattern of symptoms consistent with a diagnosis of major depression. He recommended treatment with anti-depressant medication and cognitive behavioral therapy, approximately 16-20 visits. Dr. Benson opined that Claimant was not at MMI from a psychiatric perspective. He testified that if the recommended treatment plan were implemented, Claimant likely would have a full, complete recovery from her psychiatric symptoms. He expected Claimant to be able to return to work once she began responding to psychiatric medication. Dr. Benson opined that Claimant's back problem is the major contributing pain component of her developing depression.

Claimant's counsel deposed Dr. Doheny, a board-certified psychiatrist, on December 9, 1999. The doctor testified he had interviewed Claimant and performed an IME on her on March 11, 1999. He opined that the industrial accident, and specifically the knee problem, was the major contributing cause of the diagnoses of a pain disorder and major depression. The doctor recommended that Claimant address her psychiatric problems with anti-depressant and anti-anxiety medications, along with individual therapy. Dr. Doheny opined that Claimant would have been unable to work from the date of her accident until he evaluated her. The doctor testified that it would be difficult to address MMI until psychiatric intervention was attempted. However, he speculated that if no psychiatric treatment or care were ever provided to Claimant, she would have been at psychiatric MMI when he performed the IME. Although Dr. Doheny testified that Claimant's psychiatric condition would meet the criteria for disability under section 12.04 of the "Listing of Impairments" under Social Security Disability Guidelines, he explained that he was basing this opinion primarily upon Claimant's subjective complaints. The doctor acknowledged that with appropriate psychiatric treatment, some of Claimant's depressive symptoms, difficulties, and symptoms, which are set forth in section 12.04(a) and (b) of the Guidelines, could be improved or eliminated.

Employer/Carrier authorized psychiatrist Dr. Iserman. Eventually, at the merits hearing, Claimant testified that she had dealt with Dr. Iserman previously in a professional capacity and had personal objections to his care and treatment. She contended that this uncomfortable situation was tantamount to a denial of her request for psychiatric treatment and care.

The judge of compensation claims (JCC) issued a May 5, 2000, order finding that Claimant's back injury was unrelated to her industrial accident and not compensable. The JCC granted Employer/Carrier's motion for appointment of an expert medical advisor (EMA) under section 440.13(9), Florida Statutes (1995). The JCC found a conflict in the testimony of Drs. Doheny and Benson regarding Claimant's level of disability, if any, and whether Claimant ultimately would have a permanent psychiatric impairment, which would render her eligible for PTD benefits. The JCC retained jurisdiction to determine later whether Claimant was entitled to psychiatric care or PTD benefits.

A board-certified psychiatrist, Dr. Szmurlo, was appointed EMA regarding Claimant's psychiatric condition. He evaluated Claimant three times between July 24 and September 8, 2000, and issued an evaluation report. He diagnosed Claimant as suffering from major depression and pain disorder; he opined that she would benefit from psychotherapy and treatment with medications. The EMA opined that the major contributing cause of the development of major depression and pain disorder was the knee condition arising from the industrial accident. He opined...