JUDITH JEAN EAST, APPELLANT,
v.
CVS PHARMACY, INC., GAB ROBINS, APPELLEES
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A worker injured in a fall appealed the denial of her petition for permanent total disability (PTD) benefits. The court affirmed the denial because the claimant failed to prove she would remain permanently disabled after reaching overall maximum medical improvement (MMI), as her treating physicians had not yet completed their evaluations or determined permanent work restrictions.
The court held that the claimant failed to prove she would be permanently disabled after reaching overall MMI, as required to obtain PTD benefits before overall MMI. The claimant did not meet her burden because her physicians had not completed their evaluations, determined permanent restrictions, or established overall MMI.
[1] A claimant seeking permanent total disability benefits before reaching overall maximum medical improvement must prove a present total disability that will persist after t…
[2] A claimant's failure to prove that her disability will continue after reaching overall maximum medical improvement warrants the denial of permanent total disability benef…
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“A claimant seeking PTD benefits before she reaches overall MMI must prove she has a present total disability and that said disability will exist after the date of MMI.”
Establishes the legal standard for obtaining PTD benefits before overall MMI is achieved
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEast sustained compensable injuries (fractured right kneecap, left elbow injury, and low back injury) when she fell from a ladder at work. She receive…
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The claimant in this workers’ compensation case appeals an order denying her petition for permanent total disability (“PTD”) benefits. We affirm the order because the claimant failed to prove she would be permanently disabled after reaching overall maximum medical improvement (“MMI”).
The claim for PTD benefits arose from compensable injuries (fractured right kneecap and left elbow, and injured low back) the claimant sustained when she fell from a ladder while at work. She had received temporary partial disability (“TPD”) benefits for the full 104-week period allowed under section 440.15(4), Florida Statutes, and sought PTD benefits beginning December 25, 2008. When the claimant filed her petition in May 2009, an orthopedic surgeon, a pain management *517specialist and a psychiatrist were treating her. As of the December 2009 hearing, the orthopedic surgeon restricted the claimant to sedentary work, requiring her to sit with her leg elevated and ice her knee frequently. But the surgeon would not impose permanent physical and work restrictions or find MMI until the claimant completed physical therapy. And the psychiatrist would not put the claimant at MMI for depression, anxiety and insomnia secondary to chronic pain until she reached orthopedic MMI. Only the pain management specialist deemed her at MMI for chronic knee and leg pain. But he would not assign work restrictions until the orthopedic surgeon placed the claimant at MMI and she underwent a functional capacities examination.
A claimant seeking PTD benefits before she reaches overall MMI must prove she has a present total disability and that said disability will exist after the date of MMI. See Crum v. Richmond, 46 So.3d 633, 637 (Fla. 1st DCA 2010); City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 98 (Fla. 1st DCA 1998). At the time of the hearing, the claimant here was not at overall MMI. And although the orthopedist’s restrictions resulted in total disability, he would not find MMI, impose permanent restrictions, or even know what those restrictions would be until the claimant completes the full course of physical therapy. Thus, the claimant did not prove her disability would continue after reaching full MMI. For this reason, the Judge of Compensation Claims correctly denied the claimant’s petition for PTD benefits.
AFFIRMED.
, PADOVANO and ROBERTS, 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)…ent as defined by section 440.02(10), Florida Statutes (2009).3 Under the rule recently reaffirmed in Hadley, therefore, he was entitled to permanent total disability benefits upon the cessation of temporary benefits. See East v. CVS Pharmacy, Inc., 51 So. 3d 516, 517 (Fla. 1st DCA 2010) (“A claimant seeking PTD benefits before she reaches overall MMI must prove she has a present total disability and that said disability will exist after the date of MMI.”); Crum v. Richmond, 46 So. 3d 633, 636 (Fla. 1st DCA…1 / 2
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Benniefield v. City OF Lakeland & Claims Ctr., 109 So. 3d 1288 (Fla. 1st DCA 2013)…al probability.” See § 440.02(10), Fla. Stat. (2007). It is the claimant’s burden to prove that he is at overall MMI or, if not at overall MMI, that the disability and restrictions from which he suffers are permanent. See East v. CVS Pharmacy, Inc., 51 So. 3d 516 (Fla. 1st DCA 2010). Once a claimant’s medical condition has improved as much as is reasonably expected under available and recommended remedial treatments, the claimant may be considered to be at MMI and entitled to PTD benefits for continuing disa…
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Matrix Emp. Leasing, Inc. v. Hadley, 78 So. 3d 621 (Fla. 1st DCA 2011)…101 (Padovano, J., concurring). This reasoning is as logical and persuasive today as it was 13 years ago. We have consistently applied the rule of law announced in Oswald over the past 13 years,5 most recently in East v. CVS Phar [*626] macy, Inc., 51 So. 3d 516 (Fla. 1st DCA 2010), and Crum v. Richmond, 46 So. 3d 633 (Fla. 1st DCA 2010). In Crum, we reaffirmed that: The test ... for PTD entitlement prior to the date of MMI is not, as the JCC appears to have concluded, whether a claimant is totally disable…
Authorities Cited
- City OF Pensacola Firefighters & Fla. League of Cities v. Oswald, 710 So. 2d 95 (Fla. 1st DCA 1998)
- Heathrow Master Ass'n, Inc. v. Lisle D. Zulia and James Zulia, 46 So. 3d 633 (Fla. 5th DCA 2010)
- Crum v. Richmond, 46 So. 3d 633 (Fla. 1st DCA 2010)