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Utopia Home Care/Guarantee Insurance Co. v. Alvarez

Florida Court of Appeals, First District

September 5, 2017

UTOPIA HOME CARE/GUARANTEE INSURANCE COMPANY, Appellants/Cross-Appellees,
v.
BEATRIZ ALVAREZ, Appellee/Cross-Appellant.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Date of Accident: April 6, 2011.

         An appeal from an order of Judge of Compensation Claims. Stephen L. Rosen, Judge.

          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.

          Benefits for Mental or Nervous Injury.

At all pertinent times, section 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.

         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).

         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]

         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.

          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 ...


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