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

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):

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).