DEBRA BUTTRICK, APPELLANT,
v.
BY THE SEA RESORTS, INC. AND SUMMIT CLAIMS MANAGEMENT/CLAIMS CENTER, APPELLEES

Fla. 1st DCA | 2013-02-05
No. 1D12-3384
VAN NORTWICK, ROWE, and MAKAR, JJ., concur.
108 So. 3d 658 Florida District Court of Appeal, First District (2013) Positive Treatment
Cited by 3 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Debra Buttrick appeals the workers' compensation judge's denial of permanent total disability (PTD) benefits for the second time. The court reverses and remands because the judge again failed to properly establish the date of maximum medical improvement (MMI) based on medical evidence, instead relying on a party stipulation tied to exhaustion of temporary benefits, which is legally insufficient.


Holding

The court held that the JCC erred by relying on party stipulation and 'statutory MMI' (exhaustion of temporary benefits) to establish MMI, which has no medical basis. MMI must be determined based on clear medical evidence or expert medical opinion testimony, not the date temporary benefits are exhausted. The good faith job search analysis is premature without an established MMI date.


Headnotes

[1] The date of maximum medical improvement (MMI) is the date after which further recovery or lasting improvement from an injury or disease can no longer reasonably be antici…

[2] Whether MMI has been reached is a medical question that should ordinarily be based upon a clear, explicit expression of that fact set forth in medical records or medical…

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Key Quotes

“The date of MMI is defined as 'the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.' § 440.02(10), Fla. Stat. (2007).”

Establishes the legal definition of MMI that must guide the JCC's determination

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Facts & Procedural History

Buttrick filed a workers' compensation claim and sought PTD benefits. The JCC initially failed to determine her MMI status, leading to the first appea…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Debra Buttrick, Claimant, appeals for a second time the Judge of Compensation Claims’ (JCC’s) denial of her claim for permanent total disability (PTD) benefits, as well as penalties, interest, costs, and attorney’s fees. In Buttrick v. By The Sea Resorts, 84 So.3d 476 (Fla. 1st DCA 2012), we reversed and remanded this matter “[b]ecause the JCC failed to make a finding as to whether Claimant achieved maximum medical improvement (MMI), [making] meaningful appellate review ... impossible.” Because the JCC once again failed to clarify Claimant’s MMI status, we again reverse and remand for further proceedings.

In the order under review, the JCC found “with respect based on the DCA’s directive to provide clarification, I specifically and expressly find that the Claimant reached statutory MMI on November 6, 2009, based on the stipulation of the parties as announced on and supported by the record.” (emphasis added). The only relevance of the November 6 date is that on that date Claimant exhausted her entitlement to temporary benefits.

The date of MMI is defined as “the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” § 440.02(10), Fla. Stat. (2007). Whether MMI has been reached is a medical question that “should ordinarily be based upon a clear, explicit expression of that fact set forth in medical records or medical opinion testimony.” Kilbourne & Sons v. Kilbourne, 677 So.2d 855, 859 (Fla. 1st DCA 1995). The JCC’s reference to “statutory MMI” has no place in a determination of whether a claimant is entitled to PTD benefits. Indeed, in Matrix Employee Leasing v. Hadley, 78 So.3d 621, 626 n. 6 (Fla. 1st DCA 2011) (en banc), this court made it clear that “statutory MMI,” which presumably refers to the date a claimant exhausts his or her right to temporary benefits, “has nothing to do with the employee’s ultimate medical condition or prognosis.”

A JCC is not bound by the parties’ stipulation regarding MMI if it is not supported by the record. See Fla. Power Corp. v. Hamilton, 657 So.2d 1260, 1264 (Fla. 1st DCA 1995) (“A [JCC] ought not accept a stipulation as to a date of [MMI], if the evidence is at variance with the stipulation....”). “[I]t is the obligation of the [JCC], as trier of fact, to determine the date of [MMI].” Wright v. Golf Drive Residence, Inc., 412 So.2d 884, 888 (Fla. 1st DCA 1982).

The record contains no medical evidence that Claimant reached MMI on November 6, 2009. On remand, the JCC is directed once again to clarify Claimant’s MMI status based on expert medical testimony. If she determines that Claimant has reached MMI, she should first determine whether Claimant has one of the statutorily enumerated conditions that pre*660sumptively qualify her for PTD disability benefits. See § 440.15(1)(b)1.-5., Fla. Stat. (2007). If Claimant does not have a statutorily enumerated condition, the JCC should then determine whether Claimant has established entitlement to PTD benefits based on the three alternative methods set out in Blake v. Merck & Co., 43 So.3d 882, 888 (Fla. 1st DCA 2010) (explaining alternative methods of proving entitlement to PTD benefits where claimant does not have statutorily listed injury). If, on the other hand, the JCC finds Claimant has not reached MMI, but because she has exhausted her entitlement to temporary benefits, the JCC should determine whether Claimant will be PTD when she does reach MMI. See Hadley, 78 So.3d at 624-25.

Claimant also challenges the JCC’s finding that she failed to conduct a good faith job search. Analysis of this issue is premature because no date for MMI has been ascertained. It is an employee’s permanent limitations and restrictions at the time MMI is reached that factor into whether he or she is “able to engage in at least sedentary employment, within a 50-mile radius of the employee’s residence.” § 440.15(1), Fla. Stat. (2007). See also Hernandez v. Geo Group, Inc., 46 So.3d 1123, 1125 (Fla. 1st DCA 2010) (modifying and quashing denial of future PTD benefits where injured employee had not reached MMI and permanent work restrictions could “not be accurately ascertained until MMI”).

Accordingly, this matter is REVERSED and REMANDED for further proceedings consistent with this opinion.

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


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Citator

Cited By

  • White v. State, 134 So. 3d 1134 (Fla. 1st DCA 2014)
    …imant’s assertion, the record does not indicate the parties agreed on an MMI date. In any event, a JCC should not accept a stipulation on a date of MMI where the evidence is at variance with the stipulation. See Buttrick v. By the Sea Resorts, Inc., 108 So. 3d 658, 659 (Fla. 1st DCA 2013). Here, the same document indicating Dr. Bhatt assigned a 10% PIR states “NO” in response to the question of whether Claimant had reached MMI. Based on the foregoing, we conclude that Claimant did not establish that the E/C w…
  • …e medical records or medical opinion testimony.” Lemmer v. Urban Elec., Inc., 947 So. 2d 1196, 1198 (Fla. 1st DCA 2007) (citing Kilbourne & Sons v. Kilbourne, 677 So. 2d 855, 859 (Fla. 1st DCA 1995)). See also Buttrick v. By the Sea Resorts, Inc., 108 So. 3d 658, 659 (Fla. 1st DCA 2013). “Because the question of whether a claimant has reached MMI is essentially a medical question, it should be answered by medical experts.” Lemmer, 947 So. 2d at 1198 (citing Scotty’s, Inc., v. Sarandrea, 645 So. 2d 121, 12…

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