Dade Federal Sav. & Loan Ass'n v. Smith

• Decision Date: 10 April 1981
• Docket Number: No. XX-188,XX-188
• Citation: 403 So.2d 995
• Court: Florida District Court of Appeals
• Parties: DADE FEDERAL SAVINGS & LOAN ASSOCIATION and Fidelity & Deposit Company of Maryland, Appellants, v. Doris SMITH, Appellee.

Page 995

403 So.2d 995

DADE FEDERAL SAVINGS & LOAN ASSOCIATION and Fidelity & Deposit Company of Maryland, Appellants, v. Doris SMITH, Appellee.

No. XX-188.

District Court of Appeal of Florida, First District.

April 10, 1981.

On Rehearing June 9, 1981.

Rehearing Denied Sept. 24, 1981.

Robert C. Barrett of Akerman, Senterfitt & Eidson, Orlando, for appellants.

J. David Parrish and Bill McCabe of Shepard, McCabe & Cooley, Orlando, for appellee.

McCORD, Judge.

Appellee, who was 56 years of age, was obese weighing 280 pounds, had arthritis in her knees, and had worked for appellant for 23 years. She walked with a cane, and appellant had known for years that she had arthritis. She never missed work on account of it, however. She was a cleaning woman, and while working, she tripped and fell on her right knee and head, causing a sprain to her right knee. Dr. Field testified that she had degenerative arthritis that preceded the sprain. He gave her a 5% disability to the right lower extremity on account of the fall and a 20% pre-existing impairment to the right lower extremity from the arthritis. When asked if he had an opinion within reasonable medical probability as to whether the industrial accident injury she sustained merged with the pre-existing impairment to cause her to have a greater degree of disability than the industrial accident alone would have produced, he replied:

No, sir. It was my feeling that she had a 20% pre-existing impairment on a degenerative basis, she had five percent as a result of her industrial accident, and together they would be 25% but not a greater overall disability than those two together. I don't think the industrial accident either aggravated or accelerated her arthritic condition.

Further clarifying this, he said:

I feel that she had a 20% pre-existing, and I think she had a five percent as a result of the industrial accident. I think the two equals twenty-five percent in my way of simple arithmetic, but I don't think that the two merged together made one any greater than the other. I mean I don't think the arthritis was worsened by her industrial accident, and I don't think her industrial accident, as I stated it here, was worsened by her arthritis, but I think the two together, yes, gave her a twenty-five percent."

He stated that she had traumatic arthritis in both knees, the right worse than the left, with narrowing of the articular cartilage on the medial compartment; that she may ultimately have to have surgery in the right knee, but it is his best opinion that this state would have been reached with or without her fall and that it simply served to intensify her pain and make her more aware of her limitations with her right knee; that the injury was not the ultimate cause of her arthritic condition since apparently the arthritis was seen and recognized in x-rays the day of her fall and did not develop since the injury; that she will not significantly improve but that weight loss may help her symptoms but will not alter the existence of arthritis in her knee; that he does not think she will be able to return to work as a maid as that requires much time spent on her feet, squatting, stooping, kneeling and with or without surgery, the limitations will be about the same. He said her impairment in the left knee was about 10%.

Dr. Gresham gave appellee a 25% impairment in the right knee and a 15% impairment in the left knee and said the fall aggravated the pre-existing condition in the right knee but to "no clinically measurable degree." When questioned as to whether the injury from the accident merged with the pre-existing condition to give her an overall disability rating greater than the accident alone would have given her, he said:

I think she had an arthritic condition prior to her fall and that she had some permanent impairment with her leg before the fall, and as a result of the injury, she had some disability as a result of that period and that two of them equal twenty-five percent. I testified that she had five percent due to the fall. She must have had twenty percent pre-existing, so twenty plus five equals twenty-five percent.

Dr. Gresham stated that he did not think she could ever return to gainful employment unless something was done to make her better. When asked what could be done, he said:

"She could lose a lot of weight, number one. Possibly that is all that would be necessary."

He said he did not think she was making any headway with the weight loss problem.

The deputy commissioner in his order erroneously stated that appellant testified she was 66 years old she was 56. The deputy found as follows:

1. Claimant sustained an accident arising out of and in the course and scope of her employment on February 3, 1978, resulting in injuries to her right knee and head.

2. Claimant is entitled to 75% permanent partial disability of the body as a whole based on loss of wage earning capacity as well as the pre-existing arthritic condition and obesity. In making this determination, I have taken into consideration the claimant's testimony that she had been employed with the employer for 23 years and had been able to perform her normal duties without problems until the industrial accident. I also accept the testimony of both Dr. Gresham and Dr. Field that the claimant's pre-existing arthritic condition was aggravated by the industrial accident and that the claimant's obesity has contributed to her symptoms. I have also carefully reviewed the Memorandums of Law submitted by the respective attorneys and specifically find that the injury sustained to the claimant's right leg in the industrial accident has merged with the claimant's pre-existing arthritic condition in both knees and the pre-existing obesity to cause a permanent partial disability that is materially and substantially greater than that would have resulted from the injury to the claimant's right leg alone.

3. I find that the claimant would have continued her employment at Dade Federal Saving and Loan which was light and sedentary in nature but for the industrial accident and that her condition following the industrial accident was such to render her unable to perform that type of light and sedentary employment. Due to the nature of employment prior to the industrial accident and the nature of her injuries following the industrial accident, I find that it would have been fruitless for her to merely "test her employability" and therefore, find that she is 75% permanently and partially disabled.

A merger occurs under § 440.49(2)(b) when the employee has a permanent physical impairment due to a previous accident or disease or congenital condition and subsequently suffers an accident arising out of and in the course of his employment from which he suffers permanent disability and such permanent disability is materially and substantially greater than that which would have resulted had the pre-existing permanent physical impairment not existed. Here, if we were confronted only with the pre-existing permanent physical impairment caused by the arthritis followed by the industrial injury and the 75% loss of appellee's wage-earning capacity found by the deputy commissioner, we would have the necessary ingredients for merger. When, however, the deputy commissioner coupled appellee's pre-existing obesity with the pre-existing arthritis as an element of the merger, the merger was invalidated because there is no evidence presented as to the cause of the obesity or to show that it is or is not permanent. Under the facts of this case, however, it is not necessary that there be a merger of the obesity to sustain the award of the deputy commissioner. Merger will be an issue if and when the employer seeks reimbursement from the special disability trust fund. Here it is apparent that appellee had the permanent loss of wage-earning...