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Rivendell of Ft. Walton v. Petway12/30/2002
Employer/Carrier appeal a final order awarding permanent total disability (PTD) benefits to the appellee, Susan Petway (Claimant). They contend it was error to award PTD benefits where the uncontradicted medical evidence established that she had not yet reached maximum medical improvement (MMI) from a psychiatric standpoint and that she was likely to improve with psychiatric care and treatment. We affirm the provision of appropriate benefits for Claimant's compensable low back injury and the finding 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, 710 So. 2d 95 (Fla. 1st DCA 1998).
On October 22, 1995, Claimant worked as a recreational therapist at a residential in-patient psychiatric facility. On that date, she injured her right knee when she sustained a hard fall while playing basketball with adolescent patients. That injury was accepted as compensable. Employer/Carrier paid temporary total disability (TTD) benefits until October 22, 1997, and thereafter paid impairment benefits pursuant to section 440.15(3)(a), Florida Statutes (1995), based on orthopedic surgeon Dr. Macey's 9% permanent partial impairment rating. TTD indemnity benefits were terminated upon the expiration of the 104-week time limit under section 440.15(2)(a), Florida Statutes (1995).
By January 1998, Claimant complained of low back problems, which she contended were related to her October 1995 industrial accident. Employer/Carrier initially provided treatment for the back condition but waited over a year to controvert the compensability of that condition, asserting it was not causally related to her compensable industrial accident. When they elected to provide medical care for Claimant's back complaints, Employer/Carrier did not file the required "pay and investigate" notice under section 440.20(4), Florida Statutes (1995).
In Summer 1998, Claimant hired an attorney to represent her in her claims against Employer/Carrier. At about the same time, Claimant developed symptoms of depression allegedly arising from the industrial accident; she sought a psychiatric evaluation, which Employer/Carrier initially resisted.
On November 12, 1998, Claimant filed a petition with the Division of Workers' Compensation alleging injuries to her knee and back and seeking temporary indemnity benefits; PTD benefits from October 12, 1997, the alleged date of MMI; authorization of an alternate orthopedic surgeon to treat her knee; authorization of a neurosurgeon; authorization of a pain management specialist; and authorization of a psychiatrist to evaluate and, if necessary, treat her. The petition clearly indicated Claimant was seeking benefits based on both a right knee injury and a back injury. Her January 4, 1999, amended petition requested the same benefits. Employer/Carrier filed a February 11, 1999, notice of denial stating that independent medical examinations (IMEs) had been set with Drs. Doheny and Benson.
Dr. Benson, a board-certified psychiatrist, was deposed on December 1, 1999. Dr. Benson testified that he had performed an IME of Claimant on March 25, 1999, at Employer/Carrier's request. The doctor's impression was that Claimant had experienced a substantial deterioration in her mood and had a pattern of symptoms consistent with a diag
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