REINERO FAIFE, APPELLANT,
v.
L. LURIA & SON AND KEMPER GROUP, APPELLEES
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A workers' compensation claimant appealed an order establishing a February 1990 date of maximum medical improvement (MMI). The court reversed, finding that credible medical evidence established the claimant had reached MMI as of April 5, 1989, not February 1990.
The evidence did not support the February 1990 date of MMI. The treating psychiatrist and osteopath both opined that the claimant reached MMI on April 5, 1989, and their continued treatment was palliative without reasonable expectation of further recovery. The employer/carrier's failure to promptly obtain these opinions did not negate the claimant's attainment of MMI on that date.
[1] Evidence of palliative treatment rendered without reasonable expectation of further recovery or lasting improvement supports a finding of maximum medical improvement.
[2] A treating physician's prospective assessment of maximum medical improvement, made at a specific date, is legally sufficient even if treatment continued thereafter.
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Join FLexlaw to unlock all legal intelligence“The treating psychiatrist and osteopath both advised the employer/carrier in 1990 of their opinions that the claimant had attained maximum medical improvement as of April 5, 1989.”
Establishes the medical evidence supporting MMI date of April 5, 1989
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Join FLexlaw to unlock all legal intelligenceClaimant sustained industrial injuries in 1988 when he fell from a ladder, causing back and neck injuries and leading to dental and psychiatric proble…
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PER CURIAM.
The claimant appeals a workers’ compensation order establishing that the employer/carrier “reasonably used” a February 1990 date of maximum medical improvement. We find that the evidence does not support this determination.
The claimant sustained industrial injuries when he fell to the floor from a ladder in 1988, hurting his back and neck. He also developed dental and psychiatric problems, and received treatment from various doctors. The employer/carrier paid temporary disability benefits, and eventually accepted the claimant as permanently totally disabled effective in February 1990.
The treating psychiatrist and osteopath both advised the employer/carrier in 1990 of their opinions that the claimant had attained maximum medical improvement as of April 5, 1989. While each of these doctors continued treatment after that date, such treatment was at least partly palliative. Both doctors indicated that the continuing treatment was rendered without any reasonable expectation of further recovery or lasting improvement. This evidence comports with the standard announced in Corral v. McCrory Corp., 228 So. 2d 900 (Fla.1969), for the attainment of maximum medical improvement. See also, Musgrave v. State, Dept. of Transp., 466 So. 2d 1238 (Fla. 1st DCA 1985). Both doctors also indicated that this was 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 Metropolitan Transit Authority v. Bradshaw, 478 So. 2d 115 (Fla. 1st DCA 1985). The record contains no competent substantial evidence regarding any date of maximum medical improvement other than April 5, 1989.
The order appealed is reversed and the cause remanded.
BOOTH and MINER, JJ., concur. ALLEN, J., dissents with written opinion.
ALLEN, Judge,
dissenting.
I respectfully dissent. The judge rejected April 5, 1989, as the maximum medical improvement date because the treating psychiatrist and osteopath continued to provide remedial treatment after that date. I believe it was reasonable for the judge to find that the doctors’ actions in continuing to provide remedial treatment spoke louder than their words professing no reasonable expectation of improvement.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Corral v. McCRORY Corp., 228 So. 2d 900 (Fla. 1969)
- Flavous Green v. State, 478 So. 2d 115 (Fla. 1st DCA 1985)
- Musgrave v. State, 466 So. 2d 1238 (Fla. 1st DCA 1985)
- Vista Props. OF Vero & Wausau Ins. Co. v. Heumann, 516 So. 2d 1032 (Fla. 1st DCA 1987)