EAST v. CVS PHARMACY INC (2010)

The claimant in this workers' compensation case appeals an order denying her petition for permanent total disability (“PTD”) benefits. We affirm the order because the claimant failed to prove she would be permanently disabled after reaching overall maximum medical improvement (“MMI”).

The claim for PTD benefits arose from compensable injuries (fractured right kneecap and left elbow, and injured low back) the claimant sustained when she fell from a ladder while at work. She had received temporary partial disability (“TPD”) benefits for the full 104-week period allowed under section 440.15(4), Florida Statutes, and sought PTD benefits beginning December 25, 2008. When the claimant filed her petition in May 2009, an orthopedic surgeon, a pain management specialist and a psychiatrist were treating her. As of the December 2009 hearing, the orthopedic surgeon restricted the claimant to sedentary work, requiring her to sit with her leg elevated and ice her knee frequently. But the surgeon would not impose permanent physical and work restrictions or find MMI until the claimant completed physical therapy. And the psychiatrist would not put the claimant at MMI for depression, anxiety and insomnia secondary to chronic pain until she reached orthopedic MMI. Only the pain management specialist deemed her at MMI for chronic knee and leg pain. But he would not assign work restrictions until the orthopedic surgeon placed the claimant at MMI and she underwent a functional capacities examination.

A claimant seeking PTD benefits before she reaches overall MMI must prove she has a present total disability and that said disability will exist after the date of MMI. See Crum v. Richmond, 35 Fla. L. Weekly D2350, D2351 (Fla. 1st DCA Oct. 25, 2010); City of Pensacola Firefighters v. Oswald, 710 So.2d 95, 98 (Fla. 1st DCA 1998). At the time of the hearing, the claimant here was not at overall MMI. And although the orthopedist's restrictions resulted in total disability, he would not find MMI, impose permanent restrictions, or even know what those restrictions would be until the claimant completes the full course of physical therapy. Thus, the claimant did not prove her disability would continue after reaching full MMI. For this reason, the Judge of Compensation Claims correctly denied the claimant's petition for PTD benefits.

AFFIRMED.

MARSTILLER, J.

PADOVANO and ROBERTS, JJ., concur.