Gates Energy Products v. Wheeler, 92-394
| Decision Date | 08 June 1994 |
| Docket Number | No. 92-394,92-394 |
| Parties | 19 Fla. L. Weekly D1270 GATES ENERGY PRODUCTS and Alexsis Risk Management, Appellants, v. Judy M. WHEELER, Appellee. |
| Court | Florida District Court of Appeals |
Christine L. Harter of Boehm, Brown, Rigdon, Seacrest & Fischer, P.A., Ocala, for appellants.
William G. McLean, Jr., of Barton, Davis & Fernandes, Gainesville, for appellee.
Employer and Carrier appeal a workers' compensation order awarding Claimant wage loss benefits pursuant to a compensable accident that occurred on August 20, 1988. Wage loss benefits had been paid until terminated by the employer and carrier on November 4, 1988. The Judge of Compensation Claims rejected Employer and Carrier's contention that subsection 440.15(3)(b), Florida Statutes (1991), precluded as a matter of law the finding of permanent impairment because it was based solely on subjective complaints by the claimant. We reject Employer and Carrier's proposed construction of this recently enacted statutory provision and affirm the appealed order.
The factual and legal issues are adequately discussed by the Judge of Compensation Claims in the order under review. That order reads in pertinent part:
It was the position of the claimant that she is entitled to wage loss benefits for the time period from 11-4-89 to 9-20-91 pursuant to forms previously submitted, including interest thereon. Further, claimant claims entitlement to costs and attorney's fees, with the latter being based on Florida Statute 440.34(3)(b).
The position of the employer/carrier was that claimant has been paid all benefits due, and she is not entitled to wage loss since 11-4-89, and that no costs or attorney's fees are due.
Upon hearing the testimony, observing the witness and her demeanor, and from the stipulations and all of the evidence presented, the undersigned resolves all conflicts in the evidence and makes the following findings of fact and conclusions based thereon.
1. I find that the above stipulations numbered one through six are proper and are herewith accepted.
2. I find that the claimant was involved in an industrial accident on 8-20-88, sustaining a right foot injury as indicated in the medical records. All parties acknowledge that claimant has reached MMI on 6-7-89 3. Claimant returned to work on a light-duty capacity with the employer, Gates Energy Products, after claimant's 8-20-88 accident and injury. Claimant's light-duty job allowed claimant to work in a sitting position with claimant's injured right foot propped up level with her chair. Claimant was terminated from her light-duty sitting job at Gates Energy on 10-18-88.
Claimant began treating with Dr. Lane, an authorized treating physician, on 9-20-88. As of 11-1-88, Dr. Lane had Ms. Wheeler on off-work status. On 11-9-88, Dr. Lane told claimant that she could return to a sitting job only as of 12-1-88.
On 6-7-89, Dr. Lane placed claimant at MMI with a zero percent PPI rating. However, Dr. Lane stated in his 6-7-89 office note that claimant "has some burning and numbness about the fifth MTP joint, and some radiating numbness distally." Dr. Lane testified that said observations were based on claimant's complaints. Despite placing claimant at MMI, Dr. Lane continued claimant's work restrictions of a sitting job only. On 6-7-89, Dr. Lane referred claimant to Dr. Fry for his opinion.
On 8-18-89, Dr. Fry conducted an examination and an evaluation of claimant. He found claimant had a sensory deficit in the terminal ends of the superficial cutaneous nerves. Dr. Fry assigned claimant a 1% permanent partial impairment to the body as a whole based on loss of function due to sensory impairment pursuant to the AMA Guidelines.
Claimant has continued to treat with Dr. Lane for claimant's foot injury, her most recent office visit being on 8-27-91. Dr. Lane's office records and his deposition testimony show that on each of claimant's office visits since 11-9-88, through at least 12-14-90, Dr. Lane recommended that claimant limit herself to a sitting job or that claimant "continue her current regimen." Dr. Lane's office notes and his deposition testimony do not show that Dr. Lane ever communicated to claimant that she was released to full duty work without restrictions. The undersigned accepts as credible the claimant's testimony that Dr. Lane's continuing advice to her was to limit herself to a sitting job and that Dr. Lane never communicated to her that she was released to full duty without limitations or restrictions.
The undersigned accepts as creditable the following uncontroverted testimony of the claimant in regard to claimant's foot injury: That she suffers from intermittent pain and numbness in varying degrees in her right foot; and that her pain and numbness are aggravated by excessive standing or walking.
Claimant began to do a recorded job search in December, 1988, after her release to a sitting job by Dr. Lane. Claimant testified that from December, 1988, to the present time and continuing, she has uninterruptedly continued to perform her job search. Unfortunately, claimant's job search has been entirely unsuccessful. The employer/carrier conceded and stipulated during the merits hearing that claimant has performed an extensive good faith job search. Indeed, claimant's uncontroverted testimony and job search documents show that claimant generally looked for at least fifteen jobs every two weeks, that she utilized the state job service, job hotlines, newspapers, and word-of-mouth in her unsuccessful search for employment. During claimant's job search, claimant searched for jobs that required only limited walking or standing. The undersigned accepts claimant's testimony that she searched jobs with limited walking or standing because she continued to have right foot problems and because she reasonably believed that Dr. Lane's recommendation was a sitting job only.
The undersigned finds that the carrier controverted and discontinued paying claimant wage loss benefits as of 11-4-89 and has paid no further wage loss benefits through the date of this hearing.
The undersigned recognizes that during all times from November 4, 1989, to the present, claimant has performed a continuous, extensive and good-faith job search as conceded by employer/carrier during the merits hearing.
The undersigned recognizes that claimant has a 1% impairment rating pursuant to the AMA Guides, according to Dr. Fry's uncontroverted testimony. The Employer/Carrier argues in its Bench Memorandum that the 1% impairment, which Dr. Fry specifically stated in his report, was based on the AMA Guidelines, is no impairment at all because the rating was subjective and not pursuant to the schedule adopted by the statutes as required. The E/C seems to suggest that any indication or response given by a claimant/patient during a test is not an objective finding and therefore disallowed by the AMA Guides in the determination of an impairment rating. Many of the tests as set forth and prescribed in the AMA Guides have some subjective component to them whereby the claimant/patient must give some type of response, whether it be a strength test, range of motion test or sensory loss test.
The Guides to Evaluation of Permanent Impairment, (3rd ed. 1988), make specific reference to permanent impairment based on loss of sensation in Table 10, entitled Grading Scheme and Procedure for Determining Impairment of Affected Body Part Due to Pain, Discomfort or Loss of Sensation. Similar information is also set forth in the Guides to Evaluation of Permanent Impairment, (2nd ed. 1984), in Table 4, entitled Grading Scheme and Procedure for Determining Impairment of Affected Body Part Due to Pain, Discomfort or Loss of Sensation.
The Employer/Carrier's Bench Memorandum cites Maggard v. Simpson Motors, 451 So.2d 529 (Fla. 1st DCA 1984), for the proposition that the existence in degree of permanent physical impairment must be proved by testimony based on the AMA Guidelines and cannot be based on claimant's complaints of pain alone.
In the instant case, there was competent substantial evidence that the 1% impairment rating assigned to claimant by Dr. Fry was based on the results of Dr. Fry's examination of claimant. Dr. Fry testified that he performed a pinprick test which solicited a finding of decreased sensation over the top and outside of claimant's right foot. In the Maggard case, the court noted that the doctor had done no testing whatsoever on claimant Maggard. The doctor in that case even acknowledged that he did not and could not use the AMA Guidelines. In contrast, Dr. Fry performed a thorough examination and multiple tests on Ms. Wheeler and rated her in accordance with the AMA Guides as above stated.
The Employer/Carrier argues in its Bench Memorandum that even if claimant is found to have permanent impairment, claimant's claim for wage loss benefits should be denied because the claimant has no work restrictions. This argument is rejected pursuant to the below cited case law.
In Iverson v. Holy Cross Hospital, 498 So.2d 620 (Fla. 1st DCA 1986), on facts similar to the instant case, the claimant sustained an industrial injury resulting in a 2% permanent impairment rating, was released to return to work with no restrictions or limitations and claimed wage loss. The 1st DCA stated, relying on the well known case of City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), "that a claimant's burden is satisfied by showing a change in employment status due to the injury and an adequate and good faith attempt to secure employment ... so as to establish prima facia [sic] an economic loss". Once a claimant shows such wage loss, the burden is upon the employer/carrier to demonstrate a voluntary limitation of income or refusal of work.
In the instant case, the claimant satisfied her burden according to Iverson. Ms. Wheeler's employment status was changed from full duty employment to...
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