Sarasota Cnty. Sch. Board/Optacomp v. Roberson

• Decision Date: 16 April 2014
• Docket Number: No. 1D13–4087.,1D13–4087.
• Parties: SARASOTA COUNTY SCHOOL BOARD/Optacomp, Appellants, v. Kathryn ROBERSON, Appellee.
• Court: Florida District Court of Appeals

135 So.3d 587

SARASOTA COUNTY SCHOOL BOARD/Optacomp, Appellants,

v.Kathryn ROBERSON, Appellee.

No. 1D13–4087.

District Court of Appeal of Florida, First District.

April 16, 2014.

Ben H. Cristal and Kyle M. Kennelly of the Cristal Law Group, Tampa, for Appellants.

Alex Lancaster and Amy Dickinson of Lancaster & Eure, P.A., Sarasota, for Appellee.

VAN NORTWICK, J.

In this workers' compensation matter, Sarasota County School Board and Optacomp, jointly the Employer/Carrier (E/C), argue that the Judge of Compensation Claims (JCC) erred for multiple reasons in awarding Kathryn Roberson, Claimant, permanent total disability benefits (PTD) benefits. Finding no error, we affirm the JCC's order. We write, however, to address one of the E/C's arguments—that the JCC erred in considering Claimant's psychiatric limitations ¹ in assessing Claimant's entitlement to PTD benefits.

Claimant, a teacher's aide, injured her right wrist on October 7, 2009, when she attempted to assist co-workers in restraining a violent child. The wrist injury required two surgical procedures. Claimant's authorized orthopedic surgeon, Dr. Klein, opined that she reached a point of orthopedic maximum medical improvement on February 22, 2011, and assigned a 9% permanent impairment rating.

In May 2010, Dr. Klein recommended a psychological evaluation. The E/C accepted as compensable Claimant's psychiatric condition and, in August 2010, authorized care with a psychiatrist and a mental health counselor. Claimant was placed at psychiatric maximum medical improvement in July 2012. Claimant filed a petition for benefits in August 2012 seeking entitlement to PTD benefits. In February 2013, the E/C filed a motion asking to amend its defenses to now deny compensability of Claimant's psychiatric condition based on the opinion of its independent medical examiner. By order signed February 22, 2013, the JCC granted the motion and permitted the amendment. In the appealed order, the JCC found Claimant's psychiatric condition remained compensable and found Claimant entitled to PTD benefits.

The E/C argued below, and now argues on appeal, that Claimant was required to prove her entitlement to PTD benefits based solely on her physical limitations, relying on the following language found in section 440.15(1)(b), Florida Statutes (2009):

In all other cases [cases in which the injury is not one of the injuries presumed to be totally disabling], in order to obtain permanent total disability benefits, the employee must establish that he or she is not able to engage in at least sedentary employment, within a 50–mile radius of the employee's residence, due to his or her physical limitation.The JCC rejected the E/C's argument, reasoning that this statutory provision was sufficiently similar to the 1980 version of the statute which this Court, in Public Gas Co. v. Shaw, 464 So.2d 1243 (Fla. 1st DCA 1985), determined did not preclude an award of PTD benefits when the psychiatric condition was related to the compensable physical injury. Further, the JCC explained, the Legislature in 2003 took the opportunity to address psychiatric injuries at some length and limited the duration of temporary benefits paid for psychiatric injuries, but did not similarly limit PTD benefits. See§ 440.093(3), Fla. Stat (2003). The JCC's reasoning is sound.

Prior to 1994, a claimant who did not have a listed injury was required “to establish that he is not able uninterruptedly to do even light work available within a 100–mile radius of the injured employee's residence due to physical limitation.” § 440.15(1)(b), Fla. Sta. (1993). In Shaw, 464 So.2d at 1243, this Court addressed whether the statutory reference to “physical limitation” precluded consideration of “psychiatric” limitations. This Court held that “[s]ection 440.15(1)(b)[, Florida Statutes (Supp. 1980) ²,] does not preclude PTD benefits when a claimant is unable to work because of a psychiatric disorder related to a compensable physical injury.” Id. at 1244. The Shaw Court's conclusion was based on “well settled [case law] that, where there has been a physical accident and claimant's disability is increased or prolonged by traumatic neurosis or conversion hysteria, the claimant's full disability, including the effects of the neurosis, is compensable.” Racz v. Chennault, Inc., 418 So.2d 413, 415 (Fla. 1st DCA 1982).

The requirement that there be a physical injury is the constant in these cases and, in fact, was expounded on in the 2003 amendments to chapter 440. Section 440.093 was enacted to specifically address “Mental and Nervous Injuries.” See Ch. 03–412, § 18, at 3916, Laws of Fla. In McKenzie v. Mental Health Care, Inc., 43 So.3d 767, 769–70 (Fla. 1st DCA 2010), this Court, at length, discussed section 440.093 and concluded that the Legislature described four situations in which mental or nervous injuries may arise in the workplace, two of which would be compensable and two of which were not. In both instances where the mental or nervous injury is compensable, a compensable physical injury is required. Id. It is only when there is no compensable physical injury arising out of the accident that a mental or nervous injury that may otherwise be associated with the accident is not compensable. Id.

In reaching the conclusion that the current statute's use of the term “physical limitation” does not preclude consideration of psychiatric limitations, we are mindful of the canon of statutory construction that...