Carson v. Gaineswood Condominiums, No. 87-1236

• Court: Court of Appeal of Florida (US)
• Writing for the Court: JOANOS; ERVIN; NIMMONS; NIMMONS
• Citation: 532 So.2d 28
• Parties: Michael J. CARSON, Appellant, v. GAINESWOOD CONDOMINIUMS, et al. and State Farm Insurance Company, Appellees.
• Decision Date: 13 September 1988
• Docket Number: No. 87-1236

Page 28

532 So.2d 28 Michael J. CARSON, Appellant,
v.
GAINESWOOD CONDOMINIUMS, et al. and State Farm Insurance Company, Appellees. No. 87-1236. District Court of Appeal of Florida,
First District. Sept. 13, 1988.

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Anthony J. Beisler, III, P.A., Fort Lauderdale, for appellant.

Jack A. Langdon of Langdon & McCarty, P.A., Gainesville, for appellees.

JOANOS, Judge.

Michael J. Carson (claimant) appeals a final workers' compensation order denying his claim for permanent total disability or permanent partial disability benefits. The issues raised in this appeal are: (1) whether the deputy commissioner's order is supported by competent substantial evidence, and (2) whether the deputy commissioner erred in failing to find claimant is permanently and totally disabled. We reverse and remand for more specific findings.

On July 17, 1977, claimant sustained a back injury in the course of his employment with Gaineswood Condominiums (employer). At that time, the Veterans Administration had given claimant a 70% service-connected disability, due primarily to nerves. On October 26, 1982, the employer and carrier accepted claimant as permanently and totally disabled, and provided benefits accordingly from October 27, 1982, until July 2, 1984. On June 25, 1984, the employer and carrier filed a notice to controvert on grounds that claimant was able to work, and that there was no evidence that claimant suffered any continuing impairment or disability from the accident beyond that for which compensation had been paid.

The record reflects that claimant served in the Pacific theater during World War II, and after the war, he continued in government employment acting in various intelligence-related capacities. After his July 1977 fall, claimant developed severe back pain, and on July 20, 1977, he was taken by ambulance to the Gainesville Veterans Administration Hospital, with an acute onset of low back pain and left lower extremity radicular pain. The hospital admission summary states in part that claimant "ha[d] a long history of low back pain and right lower extremity radicular pain secondary to a service connected injury." When questioned about these purported pre-existing back problems, claimant explained his prior back problems were due to a pilonidal cyst, and that he had never experienced ongoing back pain of the type associated with the work-related back injury. Despite bed rest and medication, claimant continued to experience severe back problems. In addition, he developed a condition known as drop foot, which was related to the back injury. In 1978, claimant was examined at Ochsner Clinic, and immediate

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surgery was recommended. After undergoing a lumbar laminectomy in May 1978, claimant experienced initial relief, but his pain returned; the medical records reflect that since that time he has had persistent back pain.

On June 30, 1978, claimant resigned as manager of employer Gaineswood Condominiums, effective July 9, 1978, to take a position with Lake City Community College. Claimant worked full-time at the community college in the areas of vocational evaluation, testing and guidance, until October 1978, when he was readmitted to the Veterans Administration Hospital with lower back and leg pain, and a nervous condition. On April 10, 1979, claimant was examined by Dr. Arthur Rehme, orthopedist, with, among other things, complaints of lower back and leg pains, and numb left leg. Dr. Rehme found claimant had residual effects of his spinal stenosis and previous surgery, with mild arthritis of cervical spine and some arthritis of the lumbosacral spine. In a follow-up report dated July 25, 1979, Dr. Rehme assigned claimant a permanent functional impairment of 20% of the whole body as a result of his back injury. The report also reflects that in Dr. Rehme's opinion, claimant's psychological problems were more severe than his organic problems.

In February 1979, the Veterans Administration notified claimant that his 70% service-connected disability rating had been increased to 100%, retroactive to May 1978, the date of the back surgery. At the hearing, claimant explained that although his service-connected disability was due primarily to nerves, the Veterans Administration rated him as 100% disabled as of the date of his back operation, because it was at that point that he was deemed unemployable.

A psychiatric evaluation dated April 6, 1981, reflects that claimant was suffering from depression secondary to the back injury and the subsequent pain and deficit experienced in relation to the surgery. This report indicates that claimant's prognosis for recovery and return to work were poor. At claimant's request, Dr. Wright provided a letter report dated September 15, 1982, which states that claimant has peripheral neuropathy and radicular nerve pain and secondary degenerative arthritis as a result of his original surgery, and that claimant is totally and permanently disabled because of these medical problems. Dr. Wright further stated that claimant had reached maximum medical improvement, and was totally and permanently disabled for any practical employment efforts.

The deposition of Dr. Rehme, claimant's orthopedic surgeon, reflects that claimant's back problems were the type that would have him feeling totally disabled one day, and reasonably well on another day. Dr. Rehme stated he had increased the former disability rating he had given claimant from 20% to 25%, based on definite changes revealed by x-rays. Dr. Rehme explained that the arthritic changes revealed in the x-rays were related to claimant's back surgery, and that as a result of these changes, claimant would have additional back pain from this point on. According to Dr. Rehme, claimant must avoid any type of heavy manual labor, and he was prohibited from performing some aspects of a condominium manager's job--such as ladder climbing, crawling, lifting and straining at heavy equipment.

Dr. Cote, Veterans Administration orthopedist, began treating claimant in July 1985. Dr. Cote noted that claimant had had back surgery, and was using a TNS unit and taking codeine for chronic pain. He also stated that claimant had undergone surgery for placement of electrical implants for control of his chronic pain, although the implants later had to be removed. Dr. Cote diagnosed claimant's condition as degenerative arthritis and degenerative disc disease of the lumbar spine. Like Dr. Rehme, Dr. Cote explained that claimant...