VISTA PROPERTIES OF VERO AND WAUSAU INSURANCE COMPANY, APPELLANTS,
v.
CLIFFORD HEUMANN, APPELLEE
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Vista Properties and Wausau Insurance appealed a workers' compensation order finding the claimant permanently and totally disabled with a maximum medical improvement (MMI) date of June 4, 1985. The court affirmed the MMI determination but reversed the award of permanent total disability benefits for the period when the claimant was working part-time, holding that actual work performance during the disability period negates such an award.
The court affirmed the MMI date of June 4, 1985, as supported by competent and substantial evidence, even though the physician's formal opinion came over a year later using retrospective analysis. However, the court reversed the award of permanent total disability benefits for the period from June 24, 1985, through April 5, 1986, because the claimant's actual part-time work during this period demonstrated he was not totally disabled, and no evidence showed the work was a trial work period or sheltered/gratuitous employment.
[1] A deputy commissioner's finding of maximum medical improvement is supported by competent and substantial evidence when the claimant refused treatment with the expectation…
[2] A claimant's part-time work during a period for which permanent total disability benefits are awarded, absent evidence of a trial work period or equivalent employment, ma…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although Dr. Parsons did not render his opinion on the MMI date until July 31, 1986, there was no evidence that his treatment after claimant refused to take the medication was ever rendered with the expectation of improvement.”
Establishes that retrospective MMI determination is permissible when no further improvement is expected after a certain date
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe claimant, Clifford Heumann, was receiving workers' compensation treatment from Dr. Parsons for a psychiatric condition. On June 4, 1985, the claim…
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WIGGINTON, Judge.
Before us is an appeal from the deputy commissioner’s order establishing claimant’s date of maximum medical improvement and finding him to be permanently and totally disabled. The employer/carrier argue that the deputy erred in “backdating” claimant’s permanent total disability based on his treating psychiatrist’s “retrospective” contemplation of MMI and in light of the fact that claimant had worked for some time during this period of classification. They also maintain the deputy erred in awarding taxable costs and supplemental benefits. We affirm in part and reverse in part.
We affirm the deputy’s determination of the date of maximum medical improvement as having been reached on June 4, 1985, when claimant refused to take certain anti-depressant medication. Although Dr. Parsons did not render his opinion on the MMI date until July 31, 1986, there was no evidence that his treatment after claimant refused to take the medication was ever rendered with the expectation of improvement. Compare Utley-James, Inc. v. Lady, 448 So. 2d 1191 (Fla. 1st DCA 1984); and Hall v. Dade County School Board, 492 So. 2d 768 (Fla. 1st DCA 1986). The fact that reports filed by Dr. Parsons subsequent to June 4, 1985, but prior to his July 1986 report do not set a date of MMI does not necessarily negate or refute his ultimate conclusion or render it improperly retrospective. In his July report, Dr. Parsons explained that the assignment of MMI, in this instance, had to “be made to a certain extent on a basis of retrospection.” Accordingly, under these circumstances, we conclude the deputy’s finding of MMI was based on competent and substantial evidence.
However, we must reverse the deputy’s award of permanent total disability benefits for the period of time from June 24, 1985, through April 5, 1986, during which claimant worked part-time. There is no evidence that this period was a “trial work period” or was the equivalent to sheltered or gratuitous employment. Accordingly, since claimant did not show that he was unable to perform even light-duty work uninterruptedly during a portion of the period that the deputy found him to be permanently and totally disabled, the deputy erred in awarding such benefits, as well as the concomitant supplemental benefits.
However, since the claimant did prevail below on the issue of maximum medical improvement, the deputy did not err in taxing costs against the employer. See section 440.34(3), Fla.Stat. (Supp.1980).
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.
BOOTH and BARFIELD, JJ., concur.
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United States Fid. & Guar. Ass'n & Mark Dunning Indus. v. Hal Kemp, 658 So. 2d 1212 (Fla. 1st DCA 1995)…eld part-time job but there was testimony that she could only work “as tolerated,” which the court concluded was sufficient evidence of inability to work uninterruptedly to sustain an award of PTD benefits) with Vista Properties of Vero v. Heu-mann, 516 So. 2d 1032, 1033 (Fla. 1st DCA 1987) (reversing award of PTD benefits for period during which claimant held part-time, non-sheltered, non-gratuitous employment, based upon conclusion that claimant had failed to demonstrate inability to work uninterruptedly). M…
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Parker v. Eaton Corp., 554 So. 2d 644 (Fla. 1st DCA 1989)…. 2d 161 (Fla. 1st DCA 1982) (no basis for a finding of MMI where nothing was done by the physician which would change the claimant’s condition from “healing” to “no further improvement reasonably expected”); cf. Vista Properties of Vero v. Heumann, 516 So. 2d 1032 (Fla. 1st DCA 1987); Carruth v. Allied Products Co., 452 So. 2d 634 (Fla. 1st DCA 1984) (finding that MMI occurred on January 6, 1982, affirmed despite medical testimony that MMI occurred on April 26, 1982, where record demonstrated that no treatmen…
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Reinero Faife v. L. Luria & SON & Kemper Grp., 587 So. 2d 610 (Fla. 1st DCA 1991)…as a prospective assessment which they made in April 1989. The employer/carrier’s failure to promptly obtain the opinions at that time does not negate the claimant’s attainment of maximum medical improvement. See Vista Properties of Vero v. Heumann, 516 So. 2d 1032 (Fla. 1st DCA 1987). The claimant also continued to receive dental care, but it was indicated that this had no significant impact on the ultimate disability. And the claimant’s chiropractor was not qualified to address the psychiatric problems. See…
Authorities Cited
- Hall v. Dade Cnty. Sch. Bd. & Gallagher Bassett Ins. Serv., 492 So. 2d 768 (Fla. 1st DCA 1986)
- Utley-James, Inc. v. Lady, 448 So. 2d 1191 (Fla. 1st DCA 1984)