For Employer/Carriers and Claimants, the point of disability called “statutory maximum medical improvement” was always a confusing moment.   Under section 440.15, a Claimant is deemed to be at maximum medical improvement (MMI) after a period of 104 weeks of temporary benefits (TTD or TPD) has been paid by the E/C. 

The problem for both sides was that Claimant often was not really at MMI from the point of view of his doctors.  Two years is a long time to be off work or on restricted work status, so a Claimant who exhausts the entire 104 weeks likely has severe, multiple injuries.  For many of these severe injuries the healing process to get Claimant at MMI is going to be much longer than that.  But, the statute says that Claimant is no longer entitled to future temporary indemnity benefits after 104 weeks of receiving temporary benefits.  What is a Claimant to do?  She cannot physically work, but she is not receiving any money from the E/C. 

For many, the only choice is to file for permanent total benefits. 

Now this seems contradictory because Claimant could be scheduled for future surgeries.   Her doctors could even testify they expect Claimant back to work after these surgeries.   Her impairments are anything but “permanent.”  This point was argued by many an E/C, but often Judges awarded PTD anyway. 

The First DCA even ruled on this in a case called Emanuel v. David Piercey Plumbing 765 So.2d 761 (Fla. 1st DCA 2000).   In that case, a Claimant, who was at  MMI from a knee injury and later had a total knee replacement, was ultimately returned to work by his surgeon.  The JCC ruled that Claimant could not have been PTD from the period between MMI and his return to work status because the notion defies the term “permanent and total disability.”  The First DCA disagreed and reversed.  At the time Claimant was MMI, he could not work and was therefore PTD, even if he was to undergo a total knee replacement which would eventually restore Claimant’s ability to work.

For many E/C and Claimant attorneys, the interpretation of Emanuel was that a Claimant could be eligible for “temporary” PTD benefits after the 104 weeks runs out.  Today, the First DCA in Florida Transport v. Quintana writes that the Emanuel decision does not stand for the award of “temporary” PTD benefits.   And, I think its about time the First DCA set the record straight.

In my opinion, there is no such thing as “temporary” PTD.  Its like being just a “little bit pregnant.”  A Claimant either is or isn’t PTD.  If the 104 weeks runs out, the E/C has a decision to make: either voluntary pick up Claimant as PTD and begin payments (with supplemental benefits) or stop temporary benefits and challenge Claimant that she is PTD. 

If a Claimant used up her 104 weeks and another surgery or extensive treatment is on the horizon, it is wise to pick Claimant up as PTD.  This can be done voluntarily, and once Claimant improves, the E/C can suspend benefits.  The goal would then be to make all means necessary to get Claimant whole again and back to work; which is the goal of the W/C statute, is it not?

If an E/C challenges Claimant that she is PTD, a Judge could rule against E/C and the only way to suspend benefits then would be to request the Court for a modification of the Judge’s order, which can be done but costs extensive time and money and the odds are long on success. 

In Quintana, the Claimant was statutory MMI but put on out of work status by his psychiatrist.  The First DCA treated the claim like a regulary PTD claim and found there was not enough competent, substantial, evidence with just the psychiatrist testimony alone to justify an award of PTD. 

I think with this decision, the clarification of Emanuel, and the elimination of “temporary” PTD, both E/C’s and Claimants will resolve the issue of PTD quickly and result in far less litigation than we have now.

 

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