CROWN CARPENTRY, INC. AND UNDERWRITERS ADJUSTING COMPANY, APPELLANTS,
v.
JOSEPH GUILLEN, APPELLEE
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Crown Carpentry and its carrier appealed an order awarding permanent total disability benefits to claimant Guillen. The court partially reversed, vacating the maximum medical improvement date and average weekly wage findings due to evidentiary gaps and miscalculations, but affirmed the award of permanent total disability benefits and penalties for late payment.
The court affirmed the finding of permanent total disability and the penalties for late payment, but reversed and remanded the MMI determination because the deputy commissioner failed to address conflicting psychiatric evidence and the testimony indicated a different MMI date. The court also reversed the AWW calculation, directing the insertion of $343.13 as the correct AWW with recalculation of the compensation rate.
[1] Permanent benefits may not be awarded prior to the claimant reaching maximum medical improvement from all relevant disorders, including psychiatric ones.
[2] A finding of maximum medical improvement must be based on evidence of both maximum physical and psychiatric improvement.
Previewing 2 of 4 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“where a claimant has both psychiatric and orthopedic injuries, permanent benefits may not be awarded prior to the claimant reaching MMI from both disorders”
Establishes the controlling legal principle that MMI determination must account for both types of injuries
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Join FLexlaw to unlock all legal intelligenceClaimant Guillen sustained both physical and psychiatric injuries. The deputy commissioner awarded permanent total disability benefits based on findin…
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SHIVERS, Chief Judge.
The employer/carrier (E/C) appeal an order awarding claimant permanent total disability benefits and establishing his average weekly wage (AWW) and his maximum medical improvement (MMI) date. We reverse and remand the AWW and MMI findings and we affirm the remainder of the order. Claimant agrees that the July 17, 1985 MMI date in the deputy commissioner’s (DC) order is incorrect. In his order the DC stated that he based his MMI finding on the opinion of Dr. Tucker. However, by Dr. Tucker’s testimony it appears that he believed that claimant had reached MMI January 1, 1987.
Additionally, the DC should have addressed conflicting evidence from two psychiatrists which indicated on one hand that claimant did not need any psychiatric assistance, and on the other hand that he had reached psychiatric MMI February 11, 1988. See Copeland Steel v. Miles, 536 So. 2d 1179, 1181 (Fla. 1st DCA 1989) (holding that “[wjhere a claimant has both psychiatric and orthopedic injuries, permanent benefits may not be awarded prior to the claimant reaching MMI from both disorders.”). In light of these incongruities we reverse the MMI finding and remand to the DC for a MMI finding which includes as its basis evidence of both maximum physical and psychiatric improvement.1
We find no basis for disturbing the DC’s findings regarding claimant’s physical limitations, his work search, and his inability to work, as these findings are supported by competent, substantial evidence. Nevertheless, despite the validity of the DC’s' findings regarding claimant’s physical injuries, “it is improper to begin payment of permanent benefits without a determination of the date of total MMI.” See Southern Bell Telephone and Telegraph Company v. Rollins, 390 So. 2d 93, 94 (Fla. 1st DCA 1980).
The record also supports the DC’s decision to assess penalties and interest for late payment of compensation. Thus we affirm the order in these respects.
The DC’s order states that the parties stipulated to an AWW of $360. The parties' stipulations and the record in general reflect that the AWW was not stipulated to and claimant agrees that the AWW should be the $343.13 as asserted by the E/C. Thus we vacate the AWW amount indicated in the order and direct the DC on remand to insert $343.13 as the claimant’s AWW and to calculate the appropriate compensation rate.
AFFIRMED in part, REVERSED and REMANDED in part.
SMITH and BARFIELD, JJ., concur. . Claimant urges appellate revision of the MMI date in accordance with Dr. Tucker's testimony under the authority of Alro Metals v. Pullins, 451 So. 2d 1001 (Fla. 1st DCA 1984). We decline to apply Alro Metals because the instant case does not involve the sort of correctable discrepancy presented there.
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Doctor's Hosp. OF Sarasota & U.A.C. v. Taylor, 576 So. 2d 1364 (Fla. 1st DCA 1991)…nt was seeing a psychologist. There was no further testimony regarding whether claimant was permanently totally disabled or had reached maximum medical improvement from an orthopedic or psychiatric standpoint. See, Crown Carpenting, Inc. v. Guillen, 547 So. 2d 1042 (Fla. 1st DCA 1989) (holding that where a claimant has both psychiatric and orthopedic injuries, permanent benefits may not be awarded prior to claimant reaching maximum medical improvement on from both disorders). Second, an award of bad faith att…
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D.R. King v. Scotty's Distrib. Ctr., 699 So. 2d 308 (Fla. 1st DCA 1997)…he had never returned claimant to work since he took him off work the date of the accident. A claimant must, of course, reach overall MMI as to all conditions; otherwise, a finding of partial MMI is premature. See Crown Carpentry, Inc. v. Guillen, 547 So. 2d 1042 (Fla. 1st DCA 1989); Martin-Marietta Corp. v. Vargas, 472 So. 2d 833 (Fla. 1st DCA 1985). Indeed, an employee cannot be considered to be at MMI until no “further recovery from, or lasting improvement to, an injury or disease can ... reasonably be an…
Authorities Cited
- S. Bell Tel. & Tel. Co. v. Rollins, 390 So. 2d 93 (Fla. 1st DCA 1980)
- Copeland Steel & CNA Ins. Co. v. Miles, 536 So. 2d 1179 (Fla. 1st DCA 1989)
- Alro Metals & Home Indem. Co. v. Pullins, 451 So. 2d 1001 (Fla. 1st DCA 1984)