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Fla. L. Weekly D1943aTop of Form
Fla. L. Weekly D1943aTop of Form
Workers’
compensation — Temporary benefits — Mental or nervous injuries — Provision
of statute prohibiting payment of temporary benefits for a compensable mental
or nervous injury for more than 6 months after date of maximum medical
improvement for physical injury or injuries is a calendar-based limitation that
begins upon physical MMI and expires six months later — Judge of compensation
claims erred in awarding temporary benefits for mental or nervous injury for
three months starting on date expert medical advisor testified that claimant
was not yet at psychiatric MMI and should be off work entirely for three
months, a date which was over four years after claimant reached physical MMI
initially and over two years after MMI was reassigned due to decline in
physical condition and recommendation of further remedial care — JCC erred in
treating 6-month period as a bank of time that could be doled out over an
extended period after claimant reached MMI
compensation — Temporary benefits — Mental or nervous injuries — Provision
of statute prohibiting payment of temporary benefits for a compensable mental
or nervous injury for more than 6 months after date of maximum medical
improvement for physical injury or injuries is a calendar-based limitation that
begins upon physical MMI and expires six months later — Judge of compensation
claims erred in awarding temporary benefits for mental or nervous injury for
three months starting on date expert medical advisor testified that claimant
was not yet at psychiatric MMI and should be off work entirely for three
months, a date which was over four years after claimant reached physical MMI
initially and over two years after MMI was reassigned due to decline in
physical condition and recommendation of further remedial care — JCC erred in
treating 6-month period as a bank of time that could be doled out over an
extended period after claimant reached MMI
UTOPIA HOME CARE/GUARANTEE INSURANCE
COMPANY, Appellants/Cross-Appellees, v. BEATRIZ ALVAREZ,
Appellee/Cross-Appellant. 1st District. Case No. 1D16-1696. September 5, 2017.
An appeal from an order of Judge of Compensation Claims. Stephen L. Rosen,
Judge. Date of Accident: April 6, 2011. Counsel: Paulette Z. Brown and Ben H.
Cristal of Cristal Hanenian, Tampa, for Appellants/Cross-Appellees. Wendy S.
Loquasto of Fox & Loquasto, P.A., Tallahassee, and Bradley G. Smith of
Smith, Feddeler & Smith, P.A., Lakeland, for Appellee/Cross-Appellant.
COMPANY, Appellants/Cross-Appellees, v. BEATRIZ ALVAREZ,
Appellee/Cross-Appellant. 1st District. Case No. 1D16-1696. September 5, 2017.
An appeal from an order of Judge of Compensation Claims. Stephen L. Rosen,
Judge. Date of Accident: April 6, 2011. Counsel: Paulette Z. Brown and Ben H.
Cristal of Cristal Hanenian, Tampa, for Appellants/Cross-Appellees. Wendy S.
Loquasto of Fox & Loquasto, P.A., Tallahassee, and Bradley G. Smith of
Smith, Feddeler & Smith, P.A., Lakeland, for Appellee/Cross-Appellant.
(PER CURIAM.) The issue before us is
the proper interpretation of section 440.093(3), Florida Statutes (2011). Under
the plain meaning of the statute, which we will discuss before applying it to
the facts of this case, we reverse.
the proper interpretation of section 440.093(3), Florida Statutes (2011). Under
the plain meaning of the statute, which we will discuss before applying it to
the facts of this case, we reverse.
Benefits
for Mental or Nervous Injury.
for Mental or Nervous Injury.
At all pertinent times, section
440.093(3) has provided as follows:
440.093(3) has provided as follows:
Subject to the payment of permanent benefits under s.
440.15, 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, which shall
be included in the period of 104 weeks as provided in s. 440.15(2) and (4).
Mental or nervous injuries are compensable only in accordance with the terms of
this section.
440.15, 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, which shall
be included in the period of 104 weeks as provided in s. 440.15(2) and (4).
Mental or nervous injuries are compensable only in accordance with the terms of
this section.
Section 440.093(3) must be
interpreted in para materia with the subsections that immediately
precede it and the sections expressly referenced within it. See Cecil W.
Perry, Inc. v. Lopez, 425 So. 2d 180, 181 (Fla. 1st DCA 1983) (reading
parts of pertinent subsection of workers’ compensation act in para materia to
arrive at proper construction); White v. City of Jacksonville, 413 So.
2d 95, 96 (Fla. 1st DCA 1982) (same). The subsections immediately preceding
section 440.093(3) emphasize the requirement of an “accompanying physical
injury requiring medical treatment” before payment of benefits for mental or
nervous injuries is allowed. § 440.093(1), Fla. Stat. (2011). Mental or nervous
injuries must be demonstrated by “clear and convincing medical evidence by a
licensed psychiatrist,” and the compensable physical injury must “be and remain
the major contributing cause of the mental or nervous condition.” § 440.093(2),
Fla. Stat. (2011).
interpreted in para materia with the subsections that immediately
precede it and the sections expressly referenced within it. See Cecil W.
Perry, Inc. v. Lopez, 425 So. 2d 180, 181 (Fla. 1st DCA 1983) (reading
parts of pertinent subsection of workers’ compensation act in para materia to
arrive at proper construction); White v. City of Jacksonville, 413 So.
2d 95, 96 (Fla. 1st DCA 1982) (same). The subsections immediately preceding
section 440.093(3) emphasize the requirement of an “accompanying physical
injury requiring medical treatment” before payment of benefits for mental or
nervous injuries is allowed. § 440.093(1), Fla. Stat. (2011). Mental or nervous
injuries must be demonstrated by “clear and convincing medical evidence by a
licensed psychiatrist,” and the compensable physical injury must “be and remain
the major contributing cause of the mental or nervous condition.” § 440.093(2),
Fla. Stat. (2011).
The reference to section 440.15,
Florida Statutes (2011), at the beginning of section 440.93(3) — “[s]ubject to
the payment of permanent benefits under s. 440.15” — likewise requires a
connection between mental or nervous injuries and an underlying compensable
physical injury that is permanent in nature. Section 440.15 provides for
payment of permanent benefits for permanent total disability or for permanent
impairments remaining after the date of maximum medical improvement (“MMI”). §
440.15(1), (3) Fla. Stat. (2011). Thus, when a claimant attains physical MMI
and the physical injury qualifies for a permanency rating, the claimant is
entitled to, and “subject to the payment of permanent benefits” under, section
440.15.1
Florida Statutes (2011), at the beginning of section 440.93(3) — “[s]ubject to
the payment of permanent benefits under s. 440.15” — likewise requires a
connection between mental or nervous injuries and an underlying compensable
physical injury that is permanent in nature. Section 440.15 provides for
payment of permanent benefits for permanent total disability or for permanent
impairments remaining after the date of maximum medical improvement (“MMI”). §
440.15(1), (3) Fla. Stat. (2011). Thus, when a claimant attains physical MMI
and the physical injury qualifies for a permanency rating, the claimant is
entitled to, and “subject to the payment of permanent benefits” under, section
440.15.1
The dispute before us involves the
next phrase in section 440.093(3): “in no event shall temporary benefits for a
compensable mental or nervous injury be paid for more than six months after the
date of maximum medical improvement for the injured employee’s physical injury
or injuries . . . .” The issue is whether this six-month period is a bank of
time that, subject to the payment of permanent benefits, can be awarded at any
time after the claimant reaches physical MMI; or whether it is a calendar-based
limitation that begins upon physical MMI and expires six months later. Our
prior cases addressing the issue treat the six-month period as a calendar-based
limitation, and we adhere to that interpretation.
next phrase in section 440.093(3): “in no event shall temporary benefits for a
compensable mental or nervous injury be paid for more than six months after the
date of maximum medical improvement for the injured employee’s physical injury
or injuries . . . .” The issue is whether this six-month period is a bank of
time that, subject to the payment of permanent benefits, can be awarded at any
time after the claimant reaches physical MMI; or whether it is a calendar-based
limitation that begins upon physical MMI and expires six months later. Our
prior cases addressing the issue treat the six-month period as a calendar-based
limitation, and we adhere to that interpretation.
In School Board of Lee County v.
Huben, 165 So. 3d 865 (Fla. 1st DCA 2015), we construed the statute
according to its plain meaning, as we must. Id. at 867 (“in construing
statute, courts must first look to its plain language”) (citing Perez v. Rooms
To Go, 997 So. 2d 511, 512 (Fla. 1st DCA 2008)). We concluded that the
plain meaning of the statute required us to reject the “bank of time”
interpretation of the six-month limit in section 440.093(3) in favor of a
strict calendar-deadline interpretation:
Huben, 165 So. 3d 865 (Fla. 1st DCA 2015), we construed the statute
according to its plain meaning, as we must. Id. at 867 (“in construing
statute, courts must first look to its plain language”) (citing Perez v. Rooms
To Go, 997 So. 2d 511, 512 (Fla. 1st DCA 2008)). We concluded that the
plain meaning of the statute required us to reject the “bank of time”
interpretation of the six-month limit in section 440.093(3) in favor of a
strict calendar-deadline interpretation:
In contrast to the JCC’s understanding, we read section
440.093(3) to set a strict deadline after which no [temporary total disability]
benefits are payable on psychiatric injuries. The plain language of the statute
marks a date on the calendar, or starts a clock that stops six months to the
day after the date of physical MMI.
440.093(3) to set a strict deadline after which no [temporary total disability]
benefits are payable on psychiatric injuries. The plain language of the statute
marks a date on the calendar, or starts a clock that stops six months to the
day after the date of physical MMI.
Huben, 165 So. 3d at 867. In Huben, the claimant reached
MMI on her compensable physical injury on January 9, 2014. Id. at 866.
She had a twenty-percent permanent impairment rating and was receiving
impairment benefits based on that rating. Id. On July 3, 2014, five
months and twenty-four days later, she for the first time obtained the
requisite medical opinion that she had a compensable mental injury. Id. The
JCC in Huben treated the six-month period of section 440.093(3) as a
bank of time that could commence upon the date of the medical opinion as to
compensable mental injury. Id. We rejected that interpretation, instead
applying the statute as plainly written to have started the clock on the date
of the claimant’s MMI, leaving her eligible to be compensated for only six
days’ worth of psychiatric benefits. Id. Our interpretation in Huben was
consistent with our observation in an earlier case that the six-month limit is
durational. Sarasota Cty. Sch. Bd. v. Roberson, 135 So. 3d 587, 590
(Fla. 1st DCA 2014) (“[T]he Legislature [in 2003 amendments] opted to place a
limit on the duration of temporary disability benefits payable in association
with a compensable psychiatric injury.”).
MMI on her compensable physical injury on January 9, 2014. Id. at 866.
She had a twenty-percent permanent impairment rating and was receiving
impairment benefits based on that rating. Id. On July 3, 2014, five
months and twenty-four days later, she for the first time obtained the
requisite medical opinion that she had a compensable mental injury. Id. The
JCC in Huben treated the six-month period of section 440.093(3) as a
bank of time that could commence upon the date of the medical opinion as to
compensable mental injury. Id. We rejected that interpretation, instead
applying the statute as plainly written to have started the clock on the date
of the claimant’s MMI, leaving her eligible to be compensated for only six
days’ worth of psychiatric benefits. Id. Our interpretation in Huben was
consistent with our observation in an earlier case that the six-month limit is
durational. Sarasota Cty. Sch. Bd. v. Roberson, 135 So. 3d 587, 590
(Fla. 1st DCA 2014) (“[T]he Legislature [in 2003 amendments] opted to place a
limit on the duration of temporary disability benefits payable in association
with a compensable psychiatric injury.”).
Under Huben, claimants who do
not manifest potentially compensable mental or nervous injuries before or
within six months after reaching physical MMI are not eligible for temporary
mental health disability benefits. Likewise, claimants who manifest such mental
or nervous injuries before or immediately after reaching physical MMI, but who
do not immediately obtain the required medical opinion of compensability for
qualifying mental injuries, may have little or no time left in that indemnity
benefits window.2 This may seem unfair in the abstract,
and we noted in Huben that a plain-meaning application of section
440.093(3) may lead to results at odds with the overall purpose of the workers’
compensation law. Huben, 165 So. 3d at 867. However, the limited grant
of eligibility for mental-health benefits in section 440.093 is an exception to
the general rule of non-compensability for such injuries, and limiting that
exception is within the province of the Legislature. Limiting the availability
of post-physical MMI temporary mental-health disability benefits to the
six-month period immediately after initial physical MMI has support in logic
and is not facially unreasonable. As we expressly stated in Huben, the
Legislature can amend the statute if it did not contemplate such a result. Id.
The Legislature has not done so.3
not manifest potentially compensable mental or nervous injuries before or
within six months after reaching physical MMI are not eligible for temporary
mental health disability benefits. Likewise, claimants who manifest such mental
or nervous injuries before or immediately after reaching physical MMI, but who
do not immediately obtain the required medical opinion of compensability for
qualifying mental injuries, may have little or no time left in that indemnity
benefits window.2 This may seem unfair in the abstract,
and we noted in Huben that a plain-meaning application of section
440.093(3) may lead to results at odds with the overall purpose of the workers’
compensation law. Huben, 165 So. 3d at 867. However, the limited grant
of eligibility for mental-health benefits in section 440.093 is an exception to
the general rule of non-compensability for such injuries, and limiting that
exception is within the province of the Legislature. Limiting the availability
of post-physical MMI temporary mental-health disability benefits to the
six-month period immediately after initial physical MMI has support in logic
and is not facially unreasonable. As we expressly stated in Huben, the
Legislature can amend the statute if it did not contemplate such a result. Id.
The Legislature has not done so.3
Huben is not inconsistent with, or limited by, our earlier opinion
in W.G. Roe & Sons v. Razo-Guevara, 999 So. 2d 708 (Fla. 1st DCA
2008). In Razo-Guevara, we noted that the claimant there was not being
paid permanent benefits. Id. at 709. Interpreting Razo-Guevara in
light of the plain meaning of the statute and, as consistent with Huben,
we conclude that Razo-Guevara does not create a right to unlimited
psychiatric indemnity benefits during times when no permanent benefits are
being paid. Such a construction would contravene the clear import of the
physical injury and permanency prerequisites to eligibility for mental-health
benefits imposed in subsections (1) and (2) of section 440.093. When the
Legislature provided in the introductory phrase of section 440.093(3) that
post-physical MMI temporary disability benefits for mental or nervous injury
are “subject to” payment of permanent benefits under section 440.15, the intent
was to limit, not expand, benefits for mental health injuries.
in W.G. Roe & Sons v. Razo-Guevara, 999 So. 2d 708 (Fla. 1st DCA
2008). In Razo-Guevara, we noted that the claimant there was not being
paid permanent benefits. Id. at 709. Interpreting Razo-Guevara in
light of the plain meaning of the statute and, as consistent with Huben,
we conclude that Razo-Guevara does not create a right to unlimited
psychiatric indemnity benefits during times when no permanent benefits are
being paid. Such a construction would contravene the clear import of the
physical injury and permanency prerequisites to eligibility for mental-health
benefits imposed in subsections (1) and (2) of section 440.093. When the
Legislature provided in the introductory phrase of section 440.093(3) that
post-physical MMI temporary disability benefits for mental or nervous injury
are “subject to” payment of permanent benefits under section 440.15, the intent
was to limit, not expand, benefits for mental health injuries.
Applying
the Statute to this Case.
the Statute to this Case.
In this case, Claimant suffered a
compensable shoulder injury and underwent surgery for that injury. She reached
physical MMI in January of 2012 and received impairment benefits based on a
two-percent permanent impairment rating. The six-month window to obtain
post-physical MMI temporary disability benefits for her mental injury opened on
that date and closed six months later, in July of 2012; but there is no
evidence that Claimant needed such benefits then, and she did not claim them.
compensable shoulder injury and underwent surgery for that injury. She reached
physical MMI in January of 2012 and received impairment benefits based on a
two-percent permanent impairment rating. The six-month window to obtain
post-physical MMI temporary disability benefits for her mental injury opened on
that date and closed six months later, in July of 2012; but there is no
evidence that Claimant needed such benefits then, and she did not claim them.
However, Claimant continued to
report pain, which prompted her doctor to recommend a second surgery, but
conditioned on a psychiatric evaluation. The evaluation was completed with a
diagnosis of major depressive disorder, for which the compensable accident was
the major contributing cause. The Employer/Carrier accepted compensability of
the psychiatric condition and provided psychiatric treatment. Due to the
worsening of her shoulder injury and the recommendation for a second surgery —
a remedial procedure — Claimant was regarded as no longer at MMI as of 2012.
MMI was re-assigned for the shoulder injury to July 26, 2013.4 Almost two years later, Claimant
sought indemnity benefits for the psychiatric condition, and an expert medical
advisor (“EMA”) testified at his deposition on January 27, 2016, that Claimant
was not yet at psychiatric MMI and should be off work entirely for three
months. The JCC awarded Claimant three months of psychiatric benefits to begin
on the date of the EMA’s deposition, noting the six-month statutory limit.
report pain, which prompted her doctor to recommend a second surgery, but
conditioned on a psychiatric evaluation. The evaluation was completed with a
diagnosis of major depressive disorder, for which the compensable accident was
the major contributing cause. The Employer/Carrier accepted compensability of
the psychiatric condition and provided psychiatric treatment. Due to the
worsening of her shoulder injury and the recommendation for a second surgery —
a remedial procedure — Claimant was regarded as no longer at MMI as of 2012.
MMI was re-assigned for the shoulder injury to July 26, 2013.4 Almost two years later, Claimant
sought indemnity benefits for the psychiatric condition, and an expert medical
advisor (“EMA”) testified at his deposition on January 27, 2016, that Claimant
was not yet at psychiatric MMI and should be off work entirely for three
months. The JCC awarded Claimant three months of psychiatric benefits to begin
on the date of the EMA’s deposition, noting the six-month statutory limit.
The parties assert on appeal the
same arguments they presented to the JCC. The Employer/Carrier assert that
section 440.093(3) limits temporary benefits post-physical MMI for a
compensable mental or nervous injury to six months and that a request for such
benefit ripens the day after physical MMI is attained — but claim no evidence
on this record would support such an award during that time period. Claimant
argues that section 440.093(3) does not apply because it applies only to
claimants who are receiving permanent impairment benefits during the weeks in
which they would be receiving the temporary psychiatric disability payments.
Under Claimant’s argument, the temporary psychiatric disability benefits that
the Legislature intended to limit would instead become unlimited.
same arguments they presented to the JCC. The Employer/Carrier assert that
section 440.093(3) limits temporary benefits post-physical MMI for a
compensable mental or nervous injury to six months and that a request for such
benefit ripens the day after physical MMI is attained — but claim no evidence
on this record would support such an award during that time period. Claimant
argues that section 440.093(3) does not apply because it applies only to
claimants who are receiving permanent impairment benefits during the weeks in
which they would be receiving the temporary psychiatric disability payments.
Under Claimant’s argument, the temporary psychiatric disability benefits that
the Legislature intended to limit would instead become unlimited.
We reject Claimant’s argument on the
direct appeal. While the JCC correctly applied a calendar-based start date for
post-physical MMI temporary mental-health disability benefits and ruled that
the benefits were subject to the six-month statutory limit, he erred by
starting the clock running on the date of the EMA’s deposition, over four years
after Claimant reached physical MMI initially or two years after the reassigned
MMI due to the decline in physical condition and the recommendation for further
remedial care. To the extent that the JCC intended to treat the six-month
period of section 440.093(3) as a bank of time that could be doled out over an
extended period after Claimant reached physical MMI, this was also error and
contrary to the plain meaning of the statute and our holding in Huben.
The statute dictates that temporary psychiatric disability benefits are not
payable for dates or time periods later than “six months to the day after the
date of physical MMI.” Huben, 165 So. 3d at 867. Therefore, the award in
this particular case — for three months starting January 27, 2016 — was
reversible error. This is true whether the start date was Claimant’s initial
physical MMI in January 2012 or the second physical MMI date of July 26, 2013.
This construction gives effect to the legislative expression of intent to begin
such benefits in close temporal proximity to the causative physical injury and
to terminate their availability in six calendar months.
direct appeal. While the JCC correctly applied a calendar-based start date for
post-physical MMI temporary mental-health disability benefits and ruled that
the benefits were subject to the six-month statutory limit, he erred by
starting the clock running on the date of the EMA’s deposition, over four years
after Claimant reached physical MMI initially or two years after the reassigned
MMI due to the decline in physical condition and the recommendation for further
remedial care. To the extent that the JCC intended to treat the six-month
period of section 440.093(3) as a bank of time that could be doled out over an
extended period after Claimant reached physical MMI, this was also error and
contrary to the plain meaning of the statute and our holding in Huben.
The statute dictates that temporary psychiatric disability benefits are not
payable for dates or time periods later than “six months to the day after the
date of physical MMI.” Huben, 165 So. 3d at 867. Therefore, the award in
this particular case — for three months starting January 27, 2016 — was
reversible error. This is true whether the start date was Claimant’s initial
physical MMI in January 2012 or the second physical MMI date of July 26, 2013.
This construction gives effect to the legislative expression of intent to begin
such benefits in close temporal proximity to the causative physical injury and
to terminate their availability in six calendar months.
On cross-appeal, Claimant
specifically challenges the application of section 440.093(3)’s six-month
limitation to her award and challenges the constitutionality of that six-month
limit. We reject as premature the cross-appeal arguments because the award on
appeal is for a three-month term.
specifically challenges the application of section 440.093(3)’s six-month
limitation to her award and challenges the constitutionality of that six-month
limit. We reject as premature the cross-appeal arguments because the award on
appeal is for a three-month term.
REVERSED in part, AFFIRMED in part,
and REMANDED for further proceedings in accordance with this opinion. (ROWE,
KELSEY, and JAY, JJ., CONCUR.)
and REMANDED for further proceedings in accordance with this opinion. (ROWE,
KELSEY, and JAY, JJ., CONCUR.)
__________________
1Not all compensable physical
injuries at the date of MMI are permanent in nature and qualify for a permanent
impairment rating under the applicable impairment rating guidelines. See §
440.15(3)(b)-(c), Fla. Stat. (2011). If at the date of MMI the physical injury
does not qualify for a permanent rating, the Claimant is not eligible for
permanent benefits under section 440.15.
injuries at the date of MMI are permanent in nature and qualify for a permanent
impairment rating under the applicable impairment rating guidelines. See §
440.15(3)(b)-(c), Fla. Stat. (2011). If at the date of MMI the physical injury
does not qualify for a permanent rating, the Claimant is not eligible for
permanent benefits under section 440.15.
2We acknowledge that the second
sentence of section 440.093(1), Florida Statutes, provides for a mental or
nervous injury accompanying a physical injury that may constitute its own
separate injury independent of the compensable physical injury. See McKenzie
v. Mental Health Care/Summit, 43 So. 3d 767 (Fla. 1st DCA 2010). However,
no independent mental or nervous injury is asserted here.
sentence of section 440.093(1), Florida Statutes, provides for a mental or
nervous injury accompanying a physical injury that may constitute its own
separate injury independent of the compensable physical injury. See McKenzie
v. Mental Health Care/Summit, 43 So. 3d 767 (Fla. 1st DCA 2010). However,
no independent mental or nervous injury is asserted here.
3Notably, this case does not raise
the issue of a subsequent re-assignment of a claimant’s physical MMI date and
the potential for an increase in the permanent impairment rating qualification
due to the decline or worsening of a physical condition requiring the need for
further remedial medical care. Accordingly, we do not address that question in
this case.
the issue of a subsequent re-assignment of a claimant’s physical MMI date and
the potential for an increase in the permanent impairment rating qualification
due to the decline or worsening of a physical condition requiring the need for
further remedial medical care. Accordingly, we do not address that question in
this case.
4The temporary benefits at issue here
do not fall within the six-month calendar window of this re-assigned MMI date.
do not fall within the six-month calendar window of this re-assigned MMI date.
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