Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

April 25, 2014 by admin

Workers’ Compensation: Psychiatric limitation appropriate consideration in determining entitlement to PTD

39 Fla. L. Weekly D793a


Workers’ compensation — Permanent total disability — Judge
of compensation claims did not err in considering claimant’s psychiatric
limitations in assessing claimant’s entitlement to PTD benefits

SARASOTA COUNTY SCHOOL BOARD/OPTACOMP, Appellants, v. KATHRYN ROBERSON,
Appellee. 1st District. Case No. 1D13-4087. Opinion filed April 16, 2014. An
appeal from an order of the Judge of Compensation Claims. Diane B. Beck, Judge.
Date of Accident: October 7, 2009. Counsel: Ben H. Cristal and Kyle M. Kennelly
of the Cristal Law Group, Tampa, for Appellants. Alex Lancaster and Amy
Dickinson of Lancaster & Eure, P.A., Sarasota, for Appellee.
(VAN NORTWICK, Judge.) In this workers’ compensation matter, Sarasota County
School Board and Optacomp, jointly the Employer/Carrier (E/C), argue that the
Judge of Compensation Claims (JCC) erred for multiple reasons in awarding
Kathryn Roberson, Claimant, permanent total disability benefits (PTD) benefits.
Finding no error, we affirm the JCC’s order. We write, however, to address one
of the E/C’s arguments — that the JCC erred in considering Claimant’s
psychiatric limitations1 in assessing
Claimant’s entitlement to PTD benefits.
Claimant, a teacher’s aide, injured her right wrist on October 7, 2009, when
she attempted to assist co-workers in restraining a violent child. The wrist
injury required two surgical procedures. Claimant’s authorized orthopedic
surgeon, Dr. Klein, opined that she reached a point of orthopedic maximum
medical improvement on February 22, 2011, and assigned a 9% permanent impairment
rating.
In May 2010, Dr. Klein recommended a psychological evaluation. The E/C
accepted as compensable Claimant’s psychiatric condition and, in August 2010,
authorized care with a psychiatrist and a mental health counselor. Claimant was
placed at psychiatric maximum medical improvement in July 2012. Claimant filed a
petition for benefits in August 2012 seeking entitlement to PTD benefits. In
February 2013, the E/C filed a motion asking to amend its defenses to now deny
compensability of Claimant’s psychiatric condition based on the opinion of its
independent medical examiner. By order signed February 22, 2013, the JCC granted
the motion and permitted the amendment. In the appealed order, the JCC found
Claimant’s psychiatric condition remained compensable and found Claimant
entitled to PTD benefits.
The E/C argued below, and now argues on appeal, that Claimant was required to
prove her entitlement to PTD benefits based solely on her physical limitations,
relying on the following language found in section 440.15(1)(b), Florida
Statutes (2009):

In all other cases [cases in which the injury is not one of the
injuries presumed to be totally disabling], in order to obtain permanent total
disability benefits, the employee must establish that he or she is not able to
engage in at least sedentary employment, within a 50-mile radius of the
employee’s residence, due to his or her physical limitation.

The JCC rejected the E/C’s argument, reasoning that this statutory provision
was sufficiently similar to the 1980 version of the statute which this Court, in
Public Gas Co. v. Shaw, 464 So. 2d 1243 (Fla. 1st DCA 1985), determined
did not preclude an award of PTD benefits when the psychiatric condition was
related to the compensable physical injury. Further, the JCC explained, the
Legislature in 2003 took the opportunity to address psychiatric injuries at some
length and limited the duration of temporary benefits paid for psychiatric
injuries, but did not similarly limit PTD benefits. See § 440.093(3),
Fla. Stat (2003). The JCC’s reasoning is sound.
Prior to 1994, a claimant who did not have a listed injury was required “to
establish that he is not able uninterruptedly to do even light work available
within a 100-mile radius of the injured employee’s residence due to physical
limitation.” § 440.15(1)(b), Fla. Sta. (1993). In Shaw, 464 So. 2d at
1243, this Court addressed whether the statutory reference to “physical
limitation” precluded consideration of “psychiatric” limitations. This Court
held that “[s]ection 440.15(1)(b)[, Florida Statutes (Supp. 1980)2,] does not preclude PTD benefits when a claimant is
unable to work because of a psychiatric disorder related to a compensable
physical injury.” Id. at 1244. The Shaw Court’s conclusion was
based on “well settled [case law] that, where there has been a physical accident
and claimant’s disability is increased or prolonged by traumatic neurosis or
conversion hysteria, the claimant’s full disability, including the effects of
the neurosis, is compensable.” Racz v. Chennault, Inc., 418 So. 2d 413,
415 (Fla. 1st DCA 1982).
The requirement that there be a physical injury is the constant in these
cases and, in fact, was expounded on in the 2003 amendments to chapter 440.
Section 440.093 was enacted to specifically address “Mental and Nervous
Injuries.” See Ch. 03-412, § 18, at 3916, Laws of Fla. In McKenzie v.
Mental Health Care, Inc.
, 43 So. 3d 767, 769-70 (Fla. 1st DCA 2010), this
Court, at length, discussed section 440.093 and concluded that the Legislature
described four situations in which mental or nervous injuries may arise in the
workplace, two of which would be compensable and two of which were not. In both
instances where the mental or nervous injury is compensable, a compensable
physical injury is required. Id. It is only when there is no compensable
physical injury arising out of the accident that a mental or nervous injury that
may otherwise be associated with the accident is not compensable. Id.
In reaching the conclusion that the current statute’s use of the term
“physical limitation” does not preclude consideration of psychiatric
limitations, we are mindful of the canon of statutory construction that presumes
the Legislature is aware of case law. See City of Hollywood v.
Lombardi
, 770 So. 2d 1196, 1202 (Fla. 2000) (noting that “the legislature is
presumed to know the judicial constructions of a law when enacting a new version
of that law” and “[f]urthemore, the legislature is presumed to have adopted
prior judicial construction of a law unless a contrary intention is expressed in
the new version”) (citations omitted). Here, there appears to be no such
contrary intention expressed because, in the same round of amendments that
produced section 440.093, the Legislature opted to place a limit on the duration
of temporary disability benefits payable in association with a compensable
psychiatric injury. See § 440.093(3), Fla. Stat. (2003) (“in no event
shall temporary benefits for a compensable mental or nervous injury be paid for
more than 6 months after the date of maximum medical improvement for the injured
employee’s physical injury or injuries”). There is no similar limitation placed
on the payment of PTD benefits.
Our reliance here on pre-1994 case law is in keeping with our determination
in Ferrell Gas v. Childers, 982 So. 2d 36, 37 (Fla. 1st DCA 2008), that a
claimant’s vocational abilities are relevant in determining whether an award of
PTD benefits is appropriate. Specifically, the Childers Court stated that
“[u]nder the pre-1994 version of section 440.15(1)(b), [PTD] benefits may be
based on physical restrictions and vocational factors which combine to preclude
the level of work provided in the statute. The pertinent language in the current
version of section 440.15(1)(b)[, Florida Statutes (2004),] is similar to the
language under which this court has recognized that it is appropriate to
consider both physical and vocational factors.” Id. (citations omitted).
AFFIRMED. (THOMAS, J., and NORTON, VIRGINIA B., ASSOCIATE JUDGE, CONCUR.)
__________________
1We find it somewhat incongruous, given
the E/C’s focus on this issue at oral argument, that it was the E/C who sought
appointment of an expert medical advisor based on a disagreement in the medical
opinions as to Claimant’s ability to work from a psychiatric standpoint.
2The statutory language in 1980 was, in
relevant part, substantially similar to the 1993 language — “In such other
cases, no compensation is payable . . . if the employee is engaged in, or is
physically capable of engaging in, gainful employment; and the burden shall be
upon the employee to establish that he is not able uninterruptedly to do even
light work due to physical limitation.” § 440.15(1)(b), Fla. Stat. (Supp. 1980).

* * *

Filed Under: Articles

Primary Sidebar

Blog Archives

  • January 2021
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982