Cases

The limitation of entitlement to indemnity benefits six months following the date of Maximum Medical Improvement for physical injuries in regards to claims based on mental injuries is dependent upon  whether the claimant reaches physical MMI and has a permanent impairment rating for the physical injury. If there is no permanent physical impairment rating, there is no limitation of six months for temporary benefits related to mental injuries.

Section 440.093(3), Florida Statutes, cuts off temporary benefits related to psychiatric injury six months after a claimant reaches physical MMI.  Court determined that this provision is constitutional and does not deny the claimant/injured worker access to courts, due process, and equal protection by forbidding the injured worker from receiving temporary benefits even though his psychiatric injury was not at MMI. The standard of review for constitutional challenges is de novo.

Treating physician provided medical testimony and designated a retroactive maximum medical improvement date precluding claimant's entitlement to temporary benefits since MMI had been reached prior to the period of time for which temporary benefits were claimed.  The retroactive MMI date resulted from an ex parte conference with an employer/carrier representative.  On appeal, the question before the court was whether the doctor could testify to a retroactive MMI date ??? Section 440.13(4)(c), Florida Statutes, allowing for ex parte conferences with a doctor violates the privacy clause of the Florida Constitution.

The question of whether a claimant has reached MMI is a medical question that should be answered by medical experts.  In this case, the claimant argued that it was error for the doctor to provide a retroactive MMI date since the doctor did not examine the claimant on that date.  The court ruled that a doctor does not have to actually examine a patient on the date of the assigned MMI.  Court determined that there was competent and substantial evidence to support the JCC's determination as to the correctness of an assigned MMI date.  Claimant also argued that because of the fact that the claimant continued receiving medical care after the assigned MMI date constituted competent and substantial evidence that MMI date had not been reached as of the assigned MMI date by the doctor.  However, the medical evidence before the JCC regarding MMI was the opinions of the doctor that retroactively assigned MMI ?????

A review of constitutionality claims is de novo.  In regards to the claimant's claim for not allowing ex parte communications with the treating physicians by the employer/carrier was not a violation of the constitutional rights of the claimant based upon rights of privacy.  The court in the case of S & A Plumbing v. Kimes, 756 So. 2d 1037 expressly held that Section 440.13(4)(c), Florida Statutes, does not violate the Florida constitutional right to privacy.

Claimant filed a petition for temporary benefits.  Part of the claimed benefits were denied because of the fact that the claimant had reached maximum medical improvement.  That order was appealed and was currently on appeal.  A subsequent petition was filed seeking temporary benefits for periods of time subsequent to times in prior order.  JCC determined that he did not have jurisdiction to make a decision on the second filed petition since this would require him to resolve the same issues concerning the date of maximum medical improvement that had been decided in the first case that was on appeal. The second order finding no jursidiction was appealed.  Court determined that the standard of appellate review was de novo when the issue on appeal is subject matter jurisdiction.

Under Section 440.15(4)(a), Florida Statutes (2014), TPD benefits are payable if MMI has not been reached and medical conditions resulting from a compensable injury create restrictions.  A finding of MMI is precluded where a claimant is entitled to remedial care, i.e., where there is a reasonable expectation that the necessary treatment will bring about some degree of recovery even if that treatment ultimately proves ineffective.

Court determined that JCC erred in concluding that once the claimant was at MMI, he must forever stay at MMI. There can be changes of condition that may entitle a claimant to further remedial care even after assignment of a date of MMI.  Accordingly, even if the prior order had found MMI, there was still a possibility that the MMI date had changed.  Accordingly, the judge did have jurisdiction to make a determination on whether there is a new MMI date allowing for an award of temporary benefits.  The prior order and award of temporary benefits should have been interpreted as awarding temporary benefits "to the date of the hearing and for as long as such benefits are proper" as opposed to an order awarding temporary benefits "through the present and continuing."

The limitation of temporary benefits for mental or nervous injury prohibiting payment of temporary benefits for a compensable mental or nervous injury for more than 6 months after the date of maximum medical improvement for a physical injury or injuries is a calendar based limitation that begins upon physical maximum medical improvement and expires six months thereafter.  The JCC erred in treating the six month period as a "bank of time" that could be doled out over an extended period after claimant reaches MMI from a physical standpoint.  In order for the mental or nervous injuries to be compensable, the condition must be accompanied by physical injury requiring medical treatment and mental or nervous injuries must be demonstrated by clear and convincing medical evidence by a licensed psychiatrist.  The compensable physical injury must be and remain the major contributing cause of the mental or nervous condition. There also is a requirement that there be a connection between mental or nervous injuries and the underlying compensable physical injury that is permanent in nature.  When a claimant attains physical MMI and the physical injury qualifies for a permanency rating, the claimant is entitled to and subject to the payment of permanent benefits under Section 440.15, Florida Statutes. The calendar based limitation on the payment of benefits begins upon physical MMI and expires six months later.

Claimants who do not manifest potentially compensable mental or nervous injury before or within six months after reaching physical MMI is not eligible for temporary mental health disability benefits.  Likewise, a claimant who manifests such mental or nervous injuries before or immediately after reaching physical MMI but who does not immediately obtain the required medical opinion of compensability for varying medical conditions, may have little or no time left in the indemnity benefits window.

The Judge of Compensation Claims denied ongoing temporary total disability benefits after determining that the claimant had reached overall maximum medical improvement.  As a part of the order, the JCC did award the claimant an evaluation by a gastroenterologist as recommended by his authorized treating cardiologist to assess claimant's acid reflux complaints.  Claimant appealed the judge's determination that maximum medical improvement had been reached arguing that because the claimant had to undergo the evaluation of a gastroenterologist, the claimant was not at MMI. 

On appeal, JCC's order affirmed.  A claimant being treated for compensable injuries in more than one medical specialty is not at MMI until so deemed by each treating physician in each specialty.  In this instance, the injuries suffered by the claimant were cardiac and psychiatric.  The authorized treating physicians treating those injuries opined unequivocally that the claimant had reached MMI for both.

The recommendation for a gastroenterologist evaluation did not affect the MMI determination made by either the cardiologist or the psychiatrist. There was no testimony that the referral for an evaluation by a gastroenterologist in any way affected the conditions that rendered the claimant temporarily disabled and there was no testimony that the referral would bring about any further improvement in the claimant's compensable conditions.  There was no testimony that the referral would improve the claimant's condition.

JCC erred in awarding temporary total disability benefits for a psychiatric injury for a period more than six mnths after the claimant's maximum medical improvement date for physical injuries.  Based upon the plain language of the provisions of Section 440.093(3), Florida Statutes, this six month limitation on the payment of temporary benefits is the limit on how much in temporary benefits can be paid for psychiatric injuries. 

JCC  ruled that the limitations of Section 440.093(3) should be construed as a cumulative period limiting the total number of months actual benefits are payable after an injured worker reaches physical MMI and not limited on a consecutive month period.  However, the court ruled that the plain language of the statute marked a date on the calendar for which temporary benefits are payable that stops six months to the day after the date of physical MMI. Entitlement to temporary benefits based upon a psychiatric finding did not occur until shortly prior to the end of the six month period.  However, benefits after the six month calendar period were denied.

Appellate court reversed award of temporary partial disability benefits for periods of time after the claimant had reached maximum medical improvement.  The denial of penalties on the late payment of certain benefits for different periods of time reversed since an award of penalties based on the on late payment of indemnity benefits is not discretionary but mandatory.