ORANGE COUNTY SCHOOL BOARD AND UNITED SELF-INSURED SERVICES, APPELLANTS,
v.
LINDA MELMAN, APPELLEE
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The court reversed an award of temporary total disability benefits to an employee who sought time off work on a chiropractor's advice nearly nineteen months after reaching maximum medical improvement. The court held that once maximum medical improvement is reached, temporary total disability benefits are generally unavailable unless the claimant undergoes curative or remedial surgery, which palliative chiropractic treatment does not constitute.
A claimant may not receive temporary total disability benefits after reaching maximum medical improvement unless she undergoes curative or remedial surgical or medical procedures. Because Ms. Melman's chiropractic treatment was palliative in nature and held no prospect of lasting improvement, she is not entitled to temporary total disability benefits for the disputed periods.
[1] Temporary total disability benefits are generally not available after a claimant has reached maximum medical improvement.
[2] A claimant may receive temporary disability benefits after reaching maximum medical improvement if the disability arises from surgery or other remedial or curative proced…
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Join FLexlaw to unlock all legal intelligence“The date of maximum medical improvement marks the end of temporary disability and the beginning of permanent disability.”
Establishes the foundational principle that temporary total disability benefits cease upon reaching maximum medical improvement.
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Join FLexlaw to unlock all legal intelligenceLinda Melman reached maximum medical improvement on December 27, 1994, following a 1993 industrial accident. In October-November 1995 (ten months afte…
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[*1184] PER CURIAM.
After her 1993 industrial accident, Linda Melman reached maximum medical improvement on December 27, 1994. Ten months later, on a chiropractor’s advice, Ms. Melman stayed home from work from October 26 until November 29,1995. For the same reason, nearly nineteen months after reaching maximum medical improvement, she again stayed home from work from August 9 until August 14,1996. Ms. Melman sought temporary total disability benefits for these periods, which the judge of compensation claims awarded. Her former employer and its servicing agent now appeal. We reverse.
The general rule is that a claimant may receive permanent, but not temporary, total disability benefits after reaching maximum medical improvement. See Corral v. McCrory Corp., 228 So. 2d 900, 903 (Fla. 1969); Coca-Cola Bottling Co. v. Tunson, 534 So. 2d 910, 911 (Fla. 1st DCA 1988); Department of Offender Rehabilitation v. Godwin, 394 So. 2d 1091, 1092 (Fla. 1st DCA 1981); Broward County Bd. of County Comm’rs v. Damore, 391 So. 2d 286, 286 (Fla. 1st DCA 1980). “The date of maximum medical improvement marks the end of temporary disability and the beginning of permanent disability.” Corral, 228 So. 2d at 903. But see City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998) (noting a limited exception, not pertinent here, to the “venerable rule” that a claimant may not receive permanent total disability benefits before reaching maximum medical improvement).
Surgery or other remedial or curative procedures performed after the date of maximum medical improvement may entail temporary disability, however. See Smitty’s Coffee Shop v. Florida Indus. Comm’n, 86 So. 2d 268, 270 (Fla.1956); Lopez v. Nabisco Brands, Inc., 516 So. 2d 993, 995 (Fla. 1st DCA 1987); Delgado v. LaQuinta Motor Inns, 457 So. 2d 572, 574-75 (Fla. 1st DCA 1984); Atkins v. Greenhut Constr. Co., 447 So. 2d 268, 270 (Fla. 1st DCA 1983). “[A] claimant is entitled even after [maximum medical improvement] to [temporary total disability] benefits for a period of hospitalization and recuperation following curative procedures necessitated by a compensable injury.” Delgado, 457 So. 2d at 574-75; see Lopez, 516 So. 2d at 995; Palm Beach County Bd. of County Comm’rs v. Roberson, 500 So. 2d 180, 181 (Fla. 1st DCA 1986).
Here, Ms. Melman’s chiropractic treatment held no prospect of lasting improvement. The chiropractors were simply administering what we have previously viewed as palliative treatment. See Professional Adm’rs v. Macias, 448 So. 2d 1159, 1160 (Fla. 1st DCA 1984) (approving deputy commissioner’s holding that chiropractic treatment was palliative despite chiropractor’s testimony that the treatment was remedial).
Although she submitted wage-loss forms for part of the period in question, Ms. Melman’s petition for benefits did not seek wage-loss benefits for the periods in which she followed her chiropractors’ advice not to work. See § 440.15(3)(b), Fla. Stat. (1993). This is not a case where the judge of compensation claims erroneously decided upon a premature date of maximum medical improvement. Cf. Emergency One, Inc. v. Williams, 431 So. 2d 251 (Fla. 1st DCA 1983). The parties have, indeed, stipulated to maximum medical improvement as of a date nearly a year before the first period in question. Under these circumstances, Ms. Melman is not entitled to temporary total disability benefits. See, e.g., City of Tampa v. Miyares, 430 So. 2d 540, 540-41 (Fla. 1st DCA 1983); Clyatt Memorial, Inc. v. Scott, 394 So. 2d 159, 159 (Fla. 1st DCA 1981).
REVERSED.
BENTON, VAN NORTWICK and PADOVANO, JJ., concur.
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Celestino Reyes v. Granite Constr. Co., 894 So. 2d 274 (Fla. 1st DCA 2004)…mum medical improvement (MMI). See Rivendell of Fort Walton v. Petway, 833 So. 2d 292, 296 (Fla. 1st DCA 2002) (setting out general rule in Florida that a determination of MMI must precede an award of PTD benefits); Orange County Sch. Bd. v. Melman, 721 So. 2d 1183 (Fla. 1st DCA 1998) (noting that a claimant cannot receive PTD before reaching MMI). Concluding that the JCC’s findings of fact are supported by competent substantial evidence and that the JCC correctly applied the law to the facts, as found, we aff…
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Avery v. City OF Coral Gables & Johns E., 100 So. 3d 749 (Fla. 1st DCA 2012)…as “recuperative”); Lopez v. Nabisco Brands, Inc., 516 So. 2d 993, 995 (Fla. 1st DCA 1987) (recognizing period of claimant’s treatment designed to improve condition and alleviate pain as period of recuperation); cf. Orange County Sch. Bd. v. Melman, 721 So. 2d 1183, 1184 (Fla. 1st DCA 1998) (stating claimant’s palliative treatment did not constitute recuperation); see also City of Tampa v. Miyares, 430 So. 2d 540, 541 (Fla. 1st DCA 1983) (recognizing curative medical treatment as recuperation). Thus, there is…
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The City OF Lakeland & the Claims Ctr. v. Smith, 834 So. 2d 270 (Fla. 1st DCA 2002)…laimant’s retirement is improper, in view of the order’s recitation of a November 1997 date of MMI and the JCC’s apparent rejection of Dr. Baker’s opinion that the claimant did not reach MMI until July 2001. See Orange County School Board v. Melman, 721 So. 2d 1183 (Fla. 1st DCA 1998), and the cases cited therein. Because we are of the opinion that this internal inconsistency is most likely the result of an oversight on the part of the JCC, the order is REVERSED and the case is REMANDED to the JCC for furthe…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- City OF Pensacola Firefighters & Fla. League of Cities v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998)
- Corral v. McCRORY Corp., 228 So. 2d 900 (Fla. 1969)
- Prof'l Administrators & Nationwide Ins. Co. v. MacIas, 448 So. 2d 1159 (Fla. 1st DCA 1984)
- Atkins v. Greenhut Constr. Co., 447 So. 2d 268 (Fla. 1st DCA 1983)
- Dep't OF Offender Rehab. & Div. of Risk Mgmt. v. Bertie Mae Godwin, 394 So. 2d 1091 (Fla. 1st DCA 1981)
- Lopez v. Nabisco Brands, Inc., 516 So. 2d 993 (Fla. 1st DCA 1987)
- Venancia Delgado v. LaQUINTA Motor Inns & Lumbermens Mut. Ins. Co., 457 So. 2d 572 (Fla. 1st DCA 1984)
- Smitty's Coffee Shop & Great Am. Indem. Co. v. Fla. Indus. Comm'n, 86 So. 2d 268 (Fla. 1956)
- Emergency ONE, Inc. v. Kenith V. Williams, 431 So. 2d 251 (Fla. 1st DCA 1983)
- Clyatt Mem'l, Inc. v. Havina Scott, 394 So. 2d 159 (Fla. 1st DCA 1981)