CHAN'S SURFSIDE SALOON/COX VENTURES AND ZENITH INSURANCE COMPANY, APPELLANTS,
v.
MARGARET PROVOST, APPELLEE
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The court held that the claimant failed to prove she would remain permanently and totally disabled after reaching maximum medical improvement, thus reversing the award of permanent total disability benefits.
The employer and carrier appealed an award of permanent total disability benefits. The claimant's treating psychiatrists testified that it was too soo…
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PER CURIAM.
In this workers’ compensation case, the employer and carrier argue that the judge of compensation claims erroneously determined that the claimant was entitled to permanent total disability benefits because the claimant failed to prove that she would remain permanently and totally disabled after she reached maximum medical improvement. We agree and, accordingly, reverse.
This case is controlled by City of Pensacola Firefighters v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998). In that case, we reversed an award of permanent total disability benefits. In doing so, we said:
Although we assume for purposes of decision that Mr. Oswald’s claim for permanent total disability benefits became ripe after he had received temporary benefits for ninety-eight weeks, to be eligible for permanent total disability benefits, an employee whose temporary benefits have run out — or are expected to do so imminently — must be able to show not only total disability upon the cessation of temporary benefits but also that total disability will be “existing after the date of maximum medical improvement.” § 440.02(19), Fla. Stat. (Supp.1994). We find no such proof in the present case.
Id. at 98. Here, as in Oswald, nobody testified either that the claimant had reached maximum medical (psychiatric) improvement, or that she would remain permanently and totally impaired when she did reach maximum medical improvement. Rather, both psychiatrists testified that because the claimant had not begun psychiatric treatment, it was too soon to anticipate when she would reach maximum medical improvement or whether she would be totally disabled at that time. The claimant having failed to carry her burden as outlined in Oswald, the award of permanent total disability benefits was error. REVERSED.
ERVIN, WOLF and WEBSTER, JJ., CONCUR.
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Westphal v. City OF ST. Petersburg/City OF ST. Petersburg Risk Mgmt., 122 So. 3d 440 (Fla. 1st DCA 2013)…(denying a disabled worker disability benefits after the expiration of the 104-week period because she failed to prove that she would still be totally disabled at the time she reached maximum medical improvement); Chan’s Surfside Saloon v. Provost, 764 So. 2d 700 (Fla. 1st DCA 2000) (denying a disabled worker disability benefits because she failed to prove that she would still be disabled at the time she reached maximum medical improvement); Metropolitan Title & Guar. Co. v. Muniz, 806 So. 2d 637 (Fla. 1st D…
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Rivendell OF FT. Walton & Gallagher Bassett Servs., Inc. v. Petway, 833 So. 2d 292 (Fla. 1st DCA 2002)…g of her entitlement to psychiatric treatment and care under Dr. Doheny’s direction. We reverse, as premature, the award of PTD benefits. Metropolitan Title & Guar. Co. v. Muniz, 806 So. 2d 637 (Fla. 1st DCA 2002); Chan’s Surfside Saloon v. Provost, 764 So. 2d 700 (Fla. 1st DCA 2000) (reversing award of PTD benefits absent competent substantial evidence that claimant had reached psychiatric MMI or would remain permanently and totally. impaired when she did reach MMI); City of Pensacola Firefighters v. Oswald,…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Pensacola Firefighters & Fla. League of Cities v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998)