Alberta v. American Freight Systems, 89-3188

• Decision Date: 08 August 1990
• Docket Number: No. 89-3188,89-3188
• Citation: 565 So.2d 378
• Court: Florida District Court of Appeals
• Parties: 15 Fla. L. Weekly D2066 Michael ALBERTA, Appellant, v. AMERICAN FREIGHT SYSTEMS, Appellee.

Page 378

565 So.2d 378

15 Fla. L. Weekly D2066

Michael ALBERTA, Appellant, v. AMERICAN FREIGHT SYSTEMS, Appellee.

No. 89-3188.

District Court of Appeal of Florida First District.

Aug. 8, 1990.

Barry A. Stein, of Levine, Busch, Schnepper & Stein, P.A., Miami, for appellant.

John F. McMath, P.A., Miami, for appellee.

SHIVERS, Chief Judge.

Claimant appeals portions of a workers' compensation order finding he is not permanently physically impaired and denying him any wage loss or future chiropractic care. He also appeals the rejection of one medical opinion. We reverse the finding of no permanent impairment and no wage loss, and affirm the denial of future chiropractic care and the rejection of the one medical opinion.

On February 26, 1985, claimant, a 59-year-old truck driver, injured his back while unloading a truck for his employer. The employer accepted the injury as compensable and provided some compensation and medical benefits.

Eventually, claimant came under the care of Dr. Bonis, an M.D. specializing in rehabilitative medicine, who, according to his notes, ¹ believed that claimant suffered a cervical and lumbar sprain with no evidence of acute nerve root involvement. The Judge of Compensation Claims (JCC) relied primarily upon Dr. Bonis's notes in making his no permanent impairment finding. In the order, he wrote that because of claimant's more recent visits with Dr. Bonis, Dr. Bonis was in a better position than other treating doctors to evaluate claimant up to the time of hearing.

Dr. Bonis initially placed claimant in an intensive rehabilitation program which was monitored by the employer/carrier's (E/C's) rehabilitation nurse. Dr. Bonis discharged claimant from the program March 28, 1986 and found him at MMI. Dr. Bonis recommended in a letter to the E/C that claimant could return to work March 31, 1986 with restrictions on lifting 50 pounds frequently and 75 pounds occasionally, sitting for more than two hours or standing more than one, and walking more that one mile. According to Dr. Bonis, these restrictions translated into a zero percent whole body impairment rating under the AMA Guides.

In Wilbanks v. Cianbro Corp., 512 So.2d 300 (Fla. 1st DCA 1987) this court struck the JCC's no permanent impairment finding because of the inconsistency presented by the JCC's reliance on a doctor that placed on the claimant numerous medical restrictions which he had not lifted. The doctor had restricted the claimant in Wilbanks from repetitive bending, lifting over 25 pounds, pushing or pulling heavy loads, and prolonged sitting or standing.

As to Dr. Bonis's restrictions in the instant case, it is not clear whether he ever lifted those restrictions as the doctor in Wilbanks had never lifted the restrictions placed on the claimant there. After completion of the initial rehabilitation program, claimant went back into the program for twenty-two therapy sessions between March 9, 1987 and April 23, 1987. Claimant again sought Dr. Bonis's services in June 1988 and after that visit Dr. Bonis's notes indicate that claimant had lumbar spine flexion of 75 degrees, extension of 15 degrees, lateral flexions of 20 degrees, and rotations of 15 degrees. As claimant points out, these findings appear to yield a moderate whole body permanent impairment in accordance with the AMA Guides. As a result, Dr. Bonis's notes do not provide adequate support for the JCC's no permanent impairment finding. Had Dr. Bonis testified by deposition or otherwise and had he reconciled the range of motion test results and the restrictions he...