McFarlane, Ferguson v. Whaley

641 So. 2d 173, 1994 WL 416139

Opinion

641 So.2d 173 (1994)

McFARLANE, FERGUSON, et al. and Atlantic Mutual Companies, Appellants,
v.
Hamilton H. WHALEY, Appellee.

No. 93-1537.

District Court of Appeal of Florida, First District.

August 11, 1994.

Bernard J. Zimmerman and Joseph A. Regnery of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellants.

H. Guy Smith and Brent B. Creighton of Smith & Burnetti, P.A., Lakeland, for appellee.

ALLEN, Judge.

The employer/carrier appeal a workers' compensation order awarding permanent total disability benefits. The claimant sustained both physical and psychiatric injuries, and the evidence did not establish maximum medical improvement on a psychiatric basis. However, the claimant had attained maximum medical improvement on a physical basis, and the permanent total award was predicated solely on the claimant's physical injuries. In these circumstances a permanent total award may be made without regard to the status of the claimant's psychiatric condition. See Crews v. Hussman Refrig., 616 So.2d 610 (Fla. 1st DCA 1993); Amfesco Duramil Division v. Guzman, 596 So.2d 732 (Fla. 1st DCA 1992); John Barley Memorial v. Gillam, 550 So.2d 1179 (Fla. 1st DCA 1989).

The employer/carrier contend that the cited cases require clear evidence in these circumstances, and allude to a clear and convincing standard of proof. Although Amfesco and John Barley refer to a clear showing of permanent total disability on a physical basis, they do not mandate an enhanced burden of proof. Rather, Amfesco upheld such an award because it was supported by competent substantial evidence.

As in Crews, Amfesco, and John Barley, it is clear from the present record that the award was based solely on the claimant's physical injuries. There is competent substantial evidence to support the determination of permanent total disability, and the appealed order is therefore affirmed.

BOOTH and LAWRENCE, JJ., concur.