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Rivendell of Ft. Walton v. Petway12/30/2002
ated to Employer/Carrier her disenchantment with Dr. Iserman and had requested a different psychiatrist. Thus, the record supports Employer/Carrier's contentions that they authorized and provided psychiatric treatment and care, of which Claimant failed to avail herself, and that the uncontradicted medical evidence indicates Claimant's psychiatric condition likely would improve in response to treatment and care. Likewise, competent substantial evidence in the record supports the JCC's ruling that Claimant is entitled to psychiatric care and treatment under Dr. Doheny's direction.
The issue on appeal is entitlement to PTD benefits. Despite certain amendments to Chapter 440, Florida Statutes, see chapter 93-415, at 62, Laws of Florida, effective in 1994, the general rule is still that a determination of MMI must precede an award of PTD benefits. City of Pensacola Firefighters, 710 So. 2d at 95, 96-97. The amendments created a narrow exception to this rule where, six weeks before the termination of temporary benefits has expired under the 104-week rule, a qualified professional is able to determine that the claimant will be permanently impaired once MMI is attained and, if so, to assign a prospective impairment rating. Id. at 97-98. In Emanuel v. David Piercy Plumbing, 765 So. 2d 761 (Fla. 1st DCA 2000), this court stated that a claimant can be considered at "statutory" MMI and, thus, entitled to permanent benefits for continuing disability "once a claimant's medical condition has improved as much as is reasonably expected under available and recommended remedial treatments." Id. at 762. This represents another means of establishing MMI, aside from the more obvious one where a qualified professional opines that a claimant has reached "medical" MMI. Because Claimant has not yet submitted to the available, remedial authorized psychiatric treatment and care, a finding of entitlement to PTD is premature.
Given the unrefuted medical evidence indicating a reasonable likelihood of psychiatric improvement if Claimant receives psychiatric treatment and care, and the record evidence showing that Employer/Carrier authorized and provided a psychiatrist, we conclude that Claimant has failed to meet her burden, as established in Oswald and Emanuel, to show that she has reached psychiatric MMI. That is, any determination that Claimant is entitled to PTD benefits now---before the effects of psychiatric treatment and care are known---is premature. Chan's Surfside Saloon v. Provost, 764 So. 2d at 700. Under the instant facts, a determination on the MMI question must precede a determination of entitlement to psychiatric PTD benefits. Metropolitan Title & Guar. Co. v. Muniz, 806 So. 2d at 637; Daws Mfg. Co., Inc. v. Ostoyic, 756 So. 2d 175, 176 (Fla. 1st DCA 2000).
Accordingly, we AFFIRM the provision of benefits for Claimant's compensable low back injury ; and the authorization of psychiatric treatment and care under Dr. Doheny's supervision, as the nature of that condition and the process of recovery require; and we REVERSE the premature award of PTD benefits.
LEWIS and POLSTON, JJ. CONCUR.
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