Disability Law

First DCA: 6-Month Limitation on Temporary Compensation for Mental or Nervous Injuries Does Not Apply Where Claimant Is Not Receiving Permanent Impairment Benefits

By David A. McCranie, Esq.

One of the many changes wrought to the Florida Workers' Compensation Law in 2003 was the enactment of §440.093(3), Fla. Stat., which provides:

(3) 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. . . .

This subsection was at issue in W.G. Roe & Sons v. Razo-Guevara, decided by the First District Court of Appeal on 12/31/2008.  Although there are precious few facts set forth in the court's short opinion, it would appear that the claimant had both physical and psychological injuries resulting from his compensable accident, but the JCC had limited his entitlement to temporary compensation resulting from the psychological injuries to a period of only six months.

In a case of first impression, the court held that the phrase "subject to" in the statute means "dependent on some act or condition," which in in turn means that "the six-month limitation on temporary psychiatric benefits is conditioned upon the payment of permanent benefits for the associated physical injury."  Because Razo-Guevara was not being paid permanent impairment benefits pursuant to §440.15, the court held that §440.093(3)'s six-month limitation on temporary benefits did not apply, and it therefore reversed the JCC's order to that extent.

But the court's reasoning leaves me wondering.  The court has held many times that under most circumstances it is improper for a JCC to order the payment of any form of permanent benefits until the claimant reaches maximum medical improvement from all of his conditions.  See, e.g., Honeycutt v. Boswell Voyle Appliances, 522 So.2d 937 (Fla. 1st DCA 1988).  If that's true, then under what circumstances would §440.093(3)'s six-month limitation ever apply?  In other words, if an employee has both physical and mental injuries resulting from an accident and reaches MMI from the phsyical but not the mental injuries, permanent impairment benefits will never be payable under §440.15 at that point, and therefore §440.093(3) will never apply.

Full post as published by Florida Workers’ Compensation Law Blog on December 31, 2008 (boomark / email).