AMFESCO DURAMIL DIVISION, LINDSEY & NEWSOM CLAIMS MANAGEMENT, INC. SERVICING COMPANY AND GREATER NEW YORK MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
PASTOR GUZMAN, APPELLEE
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In a workers' compensation appeal, the First District Court of Appeal affirmed an award of permanent total disability (PTD) and attendant care (AC) benefits to an injured worker who had suffered both psychiatric and orthopedic injuries. The court held that PTD benefits could be awarded despite the claimant not reaching maximum medical improvement on the psychiatric component because competent evidence showed he was PTD based on his physical condition alone.
The court affirmed all three awards. First, PTD benefits may be awarded despite incomplete psychiatric MMI when competent, substantial evidence shows the claimant is PTD based solely on his physical injury. Second, retroactive AC benefits are affirmed because the employer/carrier waived the lack-of-notice defense by failing to raise it before the JCC. Third, the lifetime AC award is affirmed but construed as limited to the period the injury or recovery requires under Florida law.
[1] Permanent total disability benefits may be awarded based solely on a claimant's physical injury, even if a psychiatric disorder has not yet reached maximum medical improv…
[2] An employer/carrier waives the defense of lack of notice for retroactive attendant care benefits if it fails to raise the defense before the judge of compensation claims.
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“when a claimant has suffered both a psychiatric and orthopedic injury, as is the case here, permanent benefits may not be awarded until the claimant reaches MMI as to both disorders”
States the general rule regarding dual injuries and maximum medical improvement
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Join FLexlaw to unlock all legal intelligencePastor Guzman suffered both psychiatric and orthopedic injuries in a work-related accident. The judge of compensation claims awarded him permanent tot…
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ERVIN, Judge.
Appellants, Amfesco Duramil Division and Lindsey & Newsom Claims Management Inc. Servicing Company (E/C), seek review of a final compensation order which, among other things, awarded permanent total disability (PTD) and attendant care (AC) benefits to claimant, Pastor Guzman. The E/C contends that the judge of compensation claims (JCC) erred by (1) concluding claimant was permanently and totally disabled when it was undisputed he had not yet reached maximum medical improvement (MMI) from a psychiatric standpoint, (2) awarding AC retroactive to the date of injury, and (3) awarding AC benefits for the balance of claimant’s life. We affirm.
Addressing appellants’ first issue, the general rule is that when a claimant has suffered both a psychiatric and orthopedic injury, as is the case here, permanent benefits may not be awarded until the claimant reaches MMI as to both disorders. Winn Dixie Stores, Inc. v. Grubb, 570 So. 2d 1371, 1373 (Fla. 1st DCA 1990); Copeland Steel v. Miles, 536 So. 2d 1179, 1181 (Fla. 1st DCA 1989); Honeycutt v. Boswell Voyle Appliances, 522 So. 2d 937, 939 (Fla. 1st DCA 1988); Setzer’s Constr. Co. v. Hebeishy, 521 So. 2d 365, 366 (Fla. 1st DCA 1988); Martin-Marietta Corp. v. Vargas, 472 So. 2d 833, 833 (Fla. 1st DCA 1985). An exception to this rule exists, however, when the evidence clearly shows that the claimant is PTD based solely on his or her physical injury. See John Barley Memorial v. Gillam, 550 So. 2d 1179 (Fla. 1st DCA 1989). Because there is competent, substantial evidence (CSE) in the record to support a determination that claimant is PTD based on his physical condition without regard to his psychiatric disorder, we affirm the JCC’s awards of both PTD and supplemental PTD benefits.
Turning to the second issue regarding the retroactive award of AC benefits, as a general rule AC benefits may be awarded retroactively only if the E/C has notice that such care is due. ZEP Mfg. v. Gratzer, 545 So. 2d 965, 965 (Fla. 1st DCA 1989). However, if the E/C fails to object or raise the defense of lack of notice before the JCC, the defense will be deemed to have been waived on appeal and the retroactive award will be affirmed. ZEP Mfg. Because the E/C here failed to object or raise a lack-of-notice defense below, and because the record contains CSE to support the award of AC in the amounts designated, we affirm the order as it relates to retroactive AC benefits.
As for the award of AC for the remainder of claimant’s life, the JCC was entitled to accept the testimony of claimant and Dr. Casademont regarding the need for attendant care. Although the JCC awarded such care “through the balance of claimant’s life,” this language should be construed as an award of attendant care only for “such period as the nature of the injury or the process of recovery may require.” Section 440.13(2)(a), Fla.Stat. (1985). The AC award is nevertheless affirmed. Professional Adm’rs v. Macias, 448 So. 2d 1159, 1160 (Fla. 1st DCA 1984); Automatic Data Processing v. Scarberry, 412 So. 2d 927, 928 (Fla. 1st DCA 1982).
AFFIRMED.
SMITH and ALLEN, JJ., concur.
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McFARLANE v. Hamilton H. Whaley, 641 So. 2d 173 (Fla. 1st DCA 1994)…physical injuries. In these circumstances a permanent total award may be made without regard to the status of the claimant’s psychiatric condition. See Crews v. Hussman Refrig., 616 So. 2d 610 (Fla. 1st DCA 1993); Amfesco Duramil Division v. Guzman, 596 So. 2d 732 (Fla. 1st DCA 1992); John Barley Memorial v. Gillam, 550 So. 2d 1179 (Fla. 1st DCA 1989). The employer/carrier contend that the cited cases require clear evidence in these circumstances, and allude to a clear and convincing standard of proof. Alth…
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Crews v. Hussman Refrigeration & Crawford & Co., 616 So. 2d 610 (Fla. 1st DCA 1993)…ological MMI, such a dispute is immaterial to the award of PTD benefits in a case such as this, where the claimant is shown to be permanently totally disabled as the result of his orthopedic injuries alone. Amfesco [*611] Duramil Division v. Guzman, 596 So. 2d 732 (Fla. 1st DCA 1992); John Barley Memorial v. Gillam, 550 So. 2d 1179 (Fla. 1st DCA 1989). Accordingly, we vacate the order of October 15, 1991, and remand the case to the JCC with directions to reinstate the prior order of September 4, 1991. VACAT…
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Walt Disney World Co. v. McCREA, 754 So. 2d 196 (Fla. 1st DCA 2000)…have been indefinite. We therefore construe the order as awarding 24 hours of attendant care only so long as the nature of McCrea’s injury or process of recovery may require, consistent with section 440.13(2)(a). See Amfesco Duramil Div. v. Guzman, 596 So. 2d 732 (Fla. 1st DCA 1992); Ramada Inn S. Airport v. Lamowreux, 578 So. 2d 48 (Fla. 1st DCA 1991). Turning to McCrea’s cross-appeal, we conclude the JCC erred in finding that “stepchild” is synonymous with “child” for the purpose of determining that claim…
Authorities Cited
- Prof'l Administrators & Nationwide Ins. Co. v. MacIas, 448 So. 2d 1159 (Fla. 1st DCA 1984)
- John Barley Mem'l & Aetna Life & Cas. Co. v. Gillam, 550 So. 2d 1179 (Fla. 1st DCA 1989)
- Copeland Steel & CNA Ins. Co. v. Miles, 536 So. 2d 1179 (Fla. 1st DCA 1989)
- Martin-Marietta Corp. & Home Ins. Co. v. Monserrathe Vargas, 472 So. 2d 833 (Fla. 1st DCA 1985)
- Setzer's Constr. Co. & Liberty Mut. Ins. Co. v. Ahmed Hebeishy, 521 So. 2d 365 (Fla. 1st DCA 1988)
- Honeycutt v. Boswell Voyle Appliances, 522 So. 2d 937 (Fla. 1st DCA 1988)
- Automatic Data Processing & Ins. Co. of N. Am. v. Scarberry, 412 So. 2d 927 (Fla. 1st DCA 1982)
- Winn Dixie Stores, Inc. v. Grubb, 570 So. 2d 1371 (Fla. 1st DCA 1990)
- ZEP Mfg. & Underwriters Adjusting Co. v. Gratzer, 545 So. 2d 965 (Fla. 1st DCA 1989)
- State v. Castillo, 545 So. 2d 965 (Fla. 3d DCA 1989)