Stuck v. Richard's Cable TV, 91-3532

Citation611 So.2d 61
Decision Date30 December 1992
Docket NumberNo. 91-3532,91-3532
Parties18 Fla. L. Week. D176 Lawrence B. STUCK, Appellant, v. RICHARD'S CABLE TV and Florida International Indemnity, Appellees.
CourtCourt of Appeal of Florida (US)

J.W. Chalkley, III, of Chalkley & Crooke, Ocala; and Bill McCabe, of Shepherd, McCabe & Cooley, Longwood, for appellant.

Lamar D. Oxford, of Dean, Ringers, Morgan & Lawton, Orlando, for appellees.

WIGGINTON, Judge.

Claimant brings this appeal from the order of the judge of compensation claims establishing a date of maximum medical improvement and concluding that the employer/carrier properly accepted claimant as permanently and totally disabled as of November 29, 1988. For the following reasons, we reverse.

In an earlier appeal in this matter, 1 this court reversed the JCC's order finding that the E/C had properly accepted claimant as PTD in late November 1988, on the basis that the evidence failed to support that finding. The cause was remanded for a proper determination as to when the claimant had reached maximum medical improvement.

On remand, following a hearing, the JCC entered the present order under review finding the appropriate date of MMI as July 27, 1988, the date claimant was released from the hospital to which he had been referred by Dr. Byrd, his treating psychiatrist, to receive psychiatric care. The JCC further found that the E/C had appropriately accepted claimant as PTD on November 29, 1988, since it was at that time that Dr. Byrd first testified on deposition and reported that claimant had reached MMI. After carefully reviewing the record, we agree with claimant that there is no competent and substantial evidence supporting a finding of MMI on July 27, 1988, and, further, that the JCC erred in his conclusion that the E/C appropriately accepted claimant as PTD in late November 1988.

There is no basis in either deposition of claimant's two treating physicians to allow a finding of maximum medical improvement in July 1988. While Dr. Byrd stated that he had at all times rendered psychiatric care with a goal of achieving some possible improvement from a psychiatric standpoint, he did not waiver from his opinion that claimant actually had reached MMI psychiatrically prior to when he first began treating claimant in 1986, a date he later narrowed down to May 1986. Dr. Byrd testified that throughout his treatment of claimant, he merely assisted claimant through "exacerbations of very long-standing depression," and that he essentially had seen no change in claimant's condition except for when he "helped him through hard times." Consequently, the hospitalization in 1988 amounted to nothing more than a palliative effort to assist claimant through the "hard times," that is, an exacerbation of his otherwise chronic depressive state brought on by the compensable injury. Thus, the JCC erred in concluding that claimant's release from the hospital in July of 1988 marked the point at which he had reached MMI.

Rather, the only competent and substantial evidence as to MMI establishes that claimant achieved maximum medical improvement psychiatrically in May 1986 and,...

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