Tammy Davis held an administrative position with Nascar Holdings and injured her back while bending and twisting at work. Her doctors later diagnosed her with chronic regional pain syndrome and depression.
I didn't find anything about "chronic" regional pain syndrome, but according to the National Institute of Neurological Disorders and Stroke (NINDS) there is a generally recognized diagnosis known as complex regional pain syndrome (CRPS), which is a chronic pain condition that is believed to be the result of dysfunction in the central or peripheral nervous systems.
According to NINDS, the syndrome used to be called "reflex sympathetic dystrophy syndrome," There is controversy over whether CRPS has its basis in biology or psychology, which could be important to the Davis case.
Regardless, the Judge of Compensation Claims (JCC) found Davis reached physical MMI in March 2011, but said Davis has yet to reach MMI for her psychological condition.
In Florida, a worker's mental injury is not compensable unless it is a manifestation of a compensable physical injury, and Florida Code Section 440.093 provides that a worker can only receive indemnity benefits for a mental injury for up to six months from the date she achieves MMI for her physical injury.
More specifically, subsection (3) states:
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.
Consequently Nascar terminated Davis' indemnity benefits, and stopped paying for Davis' psychological care, six months after she reached physical MMI.
I'll pause here - read 440.093(3) again - does it say anything about terminating TREATMENT? (More on that later.)
The defense argues that there are "substantively different historical antecedents" for Section 440.093 and Section 440.15, which provided "a rational basis for the distinction between the two kinds of 'caps,'" and so the validity of Section 440.093 should not depend on the viability of Westphal.
The claimant argues that an affirmance of the Westphal panel decision ought to mean an invalidation of Section 440.093 also. I can see that legal argument since 440.093 makes specific reference to 440.15 in that the 6 months is included in the 104 week cap.
Friend, defense attorney George Kagan representing Nascar, requested the 1st DCA to consolidate the Davis case with the Westphal case.
Mark L. Zientz, the attorney for Davis, said in this morning's WorkCompCentral report on the case that he did not object to Kagan's request for consolidation because he felt the judges might "not get the full picture" on the inadequacy of Florida's comp system if the judges only hear about the problems with Section 440.15.
"I've been saying for years that the system as a whole is inadequate," he said, and it seems "the courts are finally starting to look at it with a critical eye."
The issue in the Davis case is that the claimant is seeking 100% permanent disability. Without inclusion of the mental injury that status can not be achieved.
According to the WorkCompCentral story, Zientz averred that Davis is totally disabled, but since her physical disabilities alone were not enough to qualify her for permanent and total disability benefits, "she needs to reach MMI psychiatrically to get PTD."
Yesterday I went on a rant about disability. I got lots of response, and as usual, much of it was divisive.
I guess my issue with a PTD status in nearly any case (not just the Davis case) is because, to me, permanent total disability should mean that there is absolutely no capacity to engage in any meaningful ability to generate income whatsoever.
And my guess is that's not the case with Ms. Davis.
But my concept of PTD has nothing to do with how disability is actually applied. "Disability" is a legal status tied to either social benefits (e.g. special parking privileges) or financial benefits (e.g. indemnity).
I don't know Davis. I don't know her circumstances. I don't know her mental issues. I do know that depression should not be entirely disabling and that it can be controlled with appropriate medication and therapy (assuming compliance which may be tied to whether or not there is appropriate medical delivery available).
I also know that there are many, many people with severe disabilities, including depression, that would otherwise qualify for total disability under workers' compensation laws that have the ability to engage in various activities that would otherwise generate some income.
And note that the employer not only terminated Davis' indemnity under 440.093, they also terminated her treatment - if there was any argument for PTD status it would be the employer's acquiescence through actions. Apparently the employer did not feel that any further treatment would help, so why pay for treatment if it isn't going to help?
Seems to me that's a tacit admission of total disability...
Regardless, the Judge of Compensation Claims (JCC) found Davis reached physical MMI in March 2011, but said Davis has yet to reach MMI for her psychological condition.
In Florida, a worker's mental injury is not compensable unless it is a manifestation of a compensable physical injury, and Florida Code Section 440.093 provides that a worker can only receive indemnity benefits for a mental injury for up to six months from the date she achieves MMI for her physical injury.
More specifically, subsection (3) states:
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.
Consequently Nascar terminated Davis' indemnity benefits, and stopped paying for Davis' psychological care, six months after she reached physical MMI.
I'll pause here - read 440.093(3) again - does it say anything about terminating TREATMENT? (More on that later.)
The defense argues that there are "substantively different historical antecedents" for Section 440.093 and Section 440.15, which provided "a rational basis for the distinction between the two kinds of 'caps,'" and so the validity of Section 440.093 should not depend on the viability of Westphal.
The claimant argues that an affirmance of the Westphal panel decision ought to mean an invalidation of Section 440.093 also. I can see that legal argument since 440.093 makes specific reference to 440.15 in that the 6 months is included in the 104 week cap.
Friend, defense attorney George Kagan representing Nascar, requested the 1st DCA to consolidate the Davis case with the Westphal case.
Mark L. Zientz, the attorney for Davis, said in this morning's WorkCompCentral report on the case that he did not object to Kagan's request for consolidation because he felt the judges might "not get the full picture" on the inadequacy of Florida's comp system if the judges only hear about the problems with Section 440.15.
"I've been saying for years that the system as a whole is inadequate," he said, and it seems "the courts are finally starting to look at it with a critical eye."
The issue in the Davis case is that the claimant is seeking 100% permanent disability. Without inclusion of the mental injury that status can not be achieved.
According to the WorkCompCentral story, Zientz averred that Davis is totally disabled, but since her physical disabilities alone were not enough to qualify her for permanent and total disability benefits, "she needs to reach MMI psychiatrically to get PTD."
Yesterday I went on a rant about disability. I got lots of response, and as usual, much of it was divisive.
I guess my issue with a PTD status in nearly any case (not just the Davis case) is because, to me, permanent total disability should mean that there is absolutely no capacity to engage in any meaningful ability to generate income whatsoever.
And my guess is that's not the case with Ms. Davis.
But my concept of PTD has nothing to do with how disability is actually applied. "Disability" is a legal status tied to either social benefits (e.g. special parking privileges) or financial benefits (e.g. indemnity).
I don't know Davis. I don't know her circumstances. I don't know her mental issues. I do know that depression should not be entirely disabling and that it can be controlled with appropriate medication and therapy (assuming compliance which may be tied to whether or not there is appropriate medical delivery available).
I also know that there are many, many people with severe disabilities, including depression, that would otherwise qualify for total disability under workers' compensation laws that have the ability to engage in various activities that would otherwise generate some income.
And note that the employer not only terminated Davis' indemnity under 440.093, they also terminated her treatment - if there was any argument for PTD status it would be the employer's acquiescence through actions. Apparently the employer did not feel that any further treatment would help, so why pay for treatment if it isn't going to help?
Seems to me that's a tacit admission of total disability...
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