Bordo Citrus Products v. Tedder

• Citation: 13 Fla. L. Weekly 16,518 So.2d 367
• Decision Date: 22 December 1987
• Docket Number: No. BS-470,BS-470
• Parties: 13 Fla. L. Weekly 16 BORDO CITRUS PRODUCTS and Liberty Mutual Insurance Company, Appellants, v. Judy A. TEDDER, Appellee.
• Court: Florida District Court of Appeals

Page 367

518 So.2d 367

13 Fla. L. Weekly 16

BORDO CITRUS PRODUCTS and Liberty Mutual Insurance Company, Appellants, v. Judy A. TEDDER, Appellee.

No. BS-470.

District Court of Appeal of Florida,

First District.

Dec. 22, 1987.

David J. Williams and Robert M. Brush of Lane, Trohn, Clarke, Bertrand, Williams, P.A., Lakeland, for appellants.

Frederick J. Daniels and James M. Hess of Langston & Hess, P.A., Orlando, for appellee.

ZEHMER, Judge.

Bordo Citrus Products, the employer, and Liberty Mutual Insurance Company, the carrier, appeal an order awarding claimant catastrophic temporary total disability benefits and temporary partial disability benefits. We affirm in part and reverse in part.

The claimant, Judy Tedder, while working as a citrus grader in a packing plant, sustained injuries to her left hand and wrist in an industrial accident on December 13, 1983. As a result of this injury, the claimant has had three surgeries to her left wrist and had not, at the time of hearing on the appealed order, reached maximum medical improvement.

She was first treated by the company doctor and then referred to Dr. Sullivan, who performed the first operation on her left wrist and put a cast on her left arm. She returned to work about December 15, 1983, just two days after the accident. She continued working from that date until the end of the 1984 citrus season and continued her pattern of seasonal work and collection of unemployment compensation until she left her job at Bordo on February 10, 1986. The claimant is right-handed, and during this time the claimant worked with either a cast or brace on her left arm. Bordo made this possible because it could assign light work grading jobs according to a person's physical capabilities. Bordo's occupational health nurse testified that claimant was an excellent worker and Bordo had no problem employing her within her limitation of being able to use only one arm. Bordo was aware, however, that claimant was having continuing pain and discomfort throughout the period of her employment.

Claimant was eventually referred to Dr. Thomas Green, an orthopedic surgeon, who performed a second operation on the left wrist on October 14, 1985. Following the third surgery in April of 1986, Dr. Green became concerned that claimant had an injury to her ulnar nerve. His diagnosis was ulnar carpal abutment syndrome, arthritis of the distal radial ulnar joint, and possible compression of the ulnar nerve. As a result, on October 8, 1986, he placed her arm in a splint that prevented all motion of the elbow and nearly all motion of the wrist. This immobilization of her arm continued through the hearing date of February 4, 1987. Dr. Green opined that claimant's ulnar nerve was compressed at the elbow and felt that eliminating motion of the elbow would decrease the irritation of the nerve. He testified that claimant's limitations were based on the amount of pain she was experiencing, rather than paralysis or a functional loss, and that the pain was not totally incapacitating insofar as use of the arm was concerned. When asked whether claimant "sustained any organic nerve damage," Dr. Green responded that he did not "believe her nerve is functioning normally." No surgery was performed to repair any nerve damage as a result of the accident, and there is no evidence that any nerves were affected during any of claimant's three operations.

Based on the recited evidence the deputy commissioner ruled that

the industrial accident of December 13, 1983, in the absence of any other injury to the left wrist represents the logical cause of the Claimant's nerve problem which has led since October 8, 1986, to a total loss of use of the Claimant's left extremity. Thus, the undersigned finds the Claimant has been entitled to catastrophic temporary total disability benefits since October 8, 1986, and continuing until such time as she regains the use of her left extremity, or the statutory 26 weeks have been exhausted as a result of the compensable industrial accident of December 13, 1983. See Marriott In-flight Services v. Garcia, 450 So.2d 569 (1st DCA 1984).

We first determine whether claimant has proven she sustained the type of organic damage to the nervous system necessary to qualify for catastrophic injury benefits under section 440.15(2)(b), Florida Statutes (1985). That section provides for payment of "catastrophic" temporary total disability benefits when an employee sustains "the loss of an arm, leg, hand or foot, or total loss of use of such member because of organic damage to the nervous system." The statute permits an award of such benefits when organic damage to the nervous system results in total loss of use of a specified limb, even though such loss is temporary rather than permanent. Marriott In-Flight Services v. Garcia, 450 So.2d 569 (Fla. 1st DCA 1984), pet. for rev. dism., 458 So.2d 273 (Fla.1984). Moreover, the damage need not be to the central nervous system; it is enough that the damage involves peripheral nerves. Hernandez v. Equipment Co. of America, Adjusto, Inc., 452 So.2d 85 (Fla. 1st DCA 1984). The statutory phrase "total loss of use" was rather clearly defined in Atlantic Plastering, Inc. v. O'Hara, 454 So.2d 743 (Fla. 1st DCA 1984) in the following discussion:

Regarding the "total loss of use" requirement of Section 440.15(2)(b), the law is clear that the phrase does not require amputation or loss of use so akin to amputation as to amount to the same thing before a claimant may be entitled to catastrophic loss benefits. Santiago v. Orr Industries, Inc., 407 So.2d 1026, 1028 (Fla. 1st DCA 1981). Therefore, it is irrelevant that O'Hara's leg was not paralyzed as a result of his injury. The key to "total loss of use" is the inability to perform functions required in an industrial setting considered in light of the use which a claimant must reasonably make of the member (here, a leg) in his employment. See Van Eyk v. R.N. Hicks Construction Co., 377 So.2d 793, 794 (Fla. 1st DCA 1979); Santiago at 1028. Here, the testimony was unrefuted that O'Hara's employment as a plasterer involves climbing up and down scaffolding, bending, carrying various construction material, kneeling, standing and squatting, all for the duration of an eight hour day. The record further demonstrates that, primarily due to the pain and frequent collapse of his leg, the greatest amount of time at any one time that O'Hara can be on his feet is 2 1/2 hours, that he has not worked as a plasterer since the accident and that, due to his back injury and complaints arising therefrom, he could not perform the functions of employment as a plasterer. We find ample support in the record for the deputy's finding that O'Hara has suffered a "total loss of use" of his leg within the meaning of the statute.

454 So.2d 743, 744. Admitting that O'Hara's herniated disc was organic damage to the nervous system, the employer and carrier nevertheless argued against the award of benefits because it was the pain rather than the damage to the nerves that was causing the loss of use. But the court stated:

We cannot accept this argument. It is not disputed that the disc injury is the cause of the shooting pain and tendency to collapse that is preventing the use of O'Hara's leg. It is specious to agree that nerve damage exists, and then to argue that the damage has not caused the loss of use but rather the pain generated by the damage.

Id. at 744-45.

Whether the loss of use of the specified limb is the result of organic damage to the nervous system is a question of fact for the deputy. Hernandez v. Equipment Co. of America, Adjusto, Inc., 452 So.2d 85. It is essential that the evidence show total loss of use of the specified body member because of organic damage to the nervous system, and that this be established by competent medical evidence. Seminole County Board of County Commissioners v. Chaplin, 460 So.2d 544 (Fla. 1st DCA 1984).

We conclude that the record contains competent substantial evidence of total loss of use of claimant's left arm caused by organic damage to the ulnar nerve within the meaning of the statute as construed and applied in Atlantic Plastering, Inc. v. O'Hara, 454 So.2d 743. There is competent evidence that claimant has suffered damage to her nervous system as defined in that case based on the doctor's finding of pressure and irritation to the ulnar nerve which causes so much pain that the arm must now be totally immobilized, at least temporarily, in hopes that the condition may improve and heal. Moreover, despite claimant's prior success in working with only one arm in positions tailored to her disability,...