Martin County School Bd. v. McDaniel

• Decision Date: 13 September 1984
• Docket Number: No. AW-274,AW-274
• Citation: 465 So.2d 1235,10 Fla. L. Weekly 502
• Parties: 24 Ed. Law Rep. 593, 10 Fla. L. Weekly 502 MARTIN COUNTY SCHOOL BOARD and Gallagher Bassett Insurance Service, Appellants, v. Ray Lee McDANIEL, Appellee.
• Court: Florida District Court of Appeals

Page 1235

465 So.2d 1235

24 Ed. Law Rep. 593, 10 Fla. L. Weekly 502

MARTIN COUNTY SCHOOL BOARD and Gallagher Bassett Insurance Service, Appellants, v. Ray Lee McDANIEL, Appellee.

No. AW-274.

District Court of Appeal of Florida First District.

Sept. 13, 1984.

On Rehearing En Banc

Feb. 27, 1985.

Rehearing Denied April 22, 1985.

Micheal A. Edwards, West Palm Beach, for appellants.

Robert H. Schott of Gamba, Junod & Schott, Palm City, for appellee.

NIMMONS, Judge.

Claimant hurt his back unloading furniture for his employer on September 4, 1981. The employer and servicing agent (E/S) appeal from an order of the deputy commissioner ordering wage loss benefits. We reverse because the deputy's finding of a permanent physical impairment is not supported by competent substantial evidence.

In Trindade v. Abbey Road Beef 'N Booze, 443 So.2d 1007, 1012 (Fla. 1st DCA 1983), we held:

[F]or purposes of determining eligibility for wage loss benefits in accordance with Section 440.15(3)(a) and (b), the existence and degree of permanent impairment resulting from injury shall be determined pursuant to the [AMA] Guides, unless such permanent impairment cannot reasonably be determined under the criteria utilized in the Guides, in which event such permanent impairment may be established under other generally accepted medical criteria for determining impairment.

And in Maggard v. Simpson Motors, 451 So.2d 529 (Fla. 1st DCA 1984), we stated:

Although we have held that medical testimony on the issue of permanent impairment need not necessarily be based on the AMA Guides, Trindade v. Abbey Road Beef 'N Booze, 443 So.2d 1007 (Fla. 1st DCA 1983), we have not gone so far as to approve a permanent impairment rating based on the claimant's subjective complaints of chronic pain. We now hold that the existence and degree of permanent Trindade, supra, at 1012.

physical impairment must be proved by testimony based on the AMA Guides, unless such impairment cannot reasonably be determined under the criteria utilized in the Guides. In such cases, permanent impairment may be proved by testimony based on the Manual for Evaluation of Permanent Physical Impairment of the American Academy of Orthopaedic Surgeons, as authorized by Rule 38F-3.175, Florida Administrative Code, or by testimony based on "other generally accepted medical criteria for determining impairment."

The deputy commissioner found in his order that both Dr. DiBartolo, the primary treating orthopedic surgeon, and Dr. Murphy, another orthopedic surgeon who performed an independent medical examination on the claimant, based their opinions of a 5% permanent physical impairment upon the Orthopedic Surgeons Manual referred to above. However, the fact is that, although both doctors agreed on a diagnosis of "chronic lumbar strain" and that the permanent impairment they described was not covered under the AMA Guides, Dr. Murphy did not rely upon the Orthopedic Guides or any other such source for the determination of impairment. We summarize Dr. Murphy's deposition testimony and his written report received in evidence.

Murphy stated in his report that the claimant demonstrated no limitation of motion; that the x-rays showed no bony abnormality, no instability of the lumbar spine, and the disc spaces to be well preserved; and that lower leg neurological examination was within normal limits. Murphy's report recounted the history of the claimant's accident and claimant's continuing complaints of pain in the back and legs. The report stated that "no objective findings for [claimant's] complaints" were found and that Murphy felt claimant was "able to perform normal custodial duties with the limitation of weight lifting." Nevertheless, Murphy concluded in his report that he would go along with Dr. DiBartolo's opinion of a 5% permanent impairment rating and prognosis of continued pain. Murphy's deposition testimony included the following:

Q What would be the basis of the five percent rating?

A The basis would be of the basis of, of, on pain and suffering and subjective symptoms.

* * *

* * *

But, using his symptom, you know, but using his symptomatic symptoms, his subjective symptoms, you know, I do feel that he does have, does have a disability, and therefore I think there, that there is other criteria under which you measure a disability. And I think that the patient has, you know, pain and discomfort from his, you know, has--I don't know whether its scarring of nerves or whatever, you know, in his low back, you know, that produces chronic strain symptoms. But that's the way he is, that's, you know, that's how I came up with this five percent disability.

Dr. Murphy had the benefit of the neurological report of Dr. Hooshmand, a neurologist whose report was received in evidence. The report states that Dr. Hooshmand's neurological examination revealed no abnormal findings. Hooshmand concluded:

Whatever injury the patient has had in the past has not left any residual, and the patient has reached maximum medical improvement with no residual of any disability. The main problem the patient has at this time is obesity, which would be helped by losing weight. Otherwise the patient has no other problems and should be able to go back to work with no limitations or restrictions.

Dr. DiBartolo, claimant's primary treating physician, testified on deposition that the only objective finding he was able to make regarding the symptoms of which the claimant continued to complain was "some muscle spasm on one or two occasions" in the early part of his treatment but that the muscle spasm had not continued. Dr. DiBartolo, therefore, conceded that his permanent impairment rating was based upon the claimant's subjective complaints of pain

and not upon any objective findings. ¹ However, Dr. DiBartolo testified that the claimant had a 5% permanent impairment under the Orthopedic Surgeons Manual (OSM). ² It is abundantly clear from the record though that Dr. DiBartolo was misapplying the OSM. The following excerpts from the OSM, which was received in evidence before the deputy, will help to demonstrate the doctor's erroneous reliance upon that Manual:

LOW LUMBAR

1. Healed sprain, contusion

A. No involuntary muscle spasm,

subjective symptoms of pain not

substantiated by demonstrable

structural pathology 0 (%)

B. Persistent muscle spasm, rigidity

and pain substantiated by demonstrable

degenerative changes,

moderate osteoarthritic lipping

revealed by x-ray, combined

trauma and pre-existing factors 10

C. Same as (B) with more extensive

osteoarthritic lipping 15

D. Same as (B) with spondylolysis or

spondylolisthesis Grade I or II,

demonstrable by x-ray, without

surgery, combined trauma and

pre-existing anomaly 20

E. Same as (D) with Grade III or IV

spondylolisthesis, persistent pain,

without fusion, aggravated by

trauma 35

F. Same as (b) or (c) with fusion

laminectomy, pain moderate 25

2. Fracture

* * *

* * *

3. Neurogenic Low Back Pain--Disc Injury

A. Periodic acute episodes with

acute pain and persistent body

list, tests for sciatic pain positive,

temporary recovery 5 to 8 weeks 5

B. Surgical excision of disc, no fusion,

good results, no persistent

sciatic pain 10

C. Surgical excision of disc, no fusion,

moderate persistent pain

and stiffness aggravated by

heavy lifting with necessary

modification of activities 20

D. Surgical excision of disc with fusion,

activities of lifting moderately modified 15

E. Surgical excision of disc with fusion,

persistent pain and stiffness

aggravated by heavy lifting,

necessitating modification of all

activities requiring heavy lifting 25

Dr. DiBartolo's testimony shows how he misapplied the OSM:

Q [Y]ou felt he had a five percent total body disability as a result of the chronic low back syndrome and would require only aspirin to relieve the pain. The rating, the five percent rating, doctor, what was that based on?

A. It is based on my evaluation of the patient and with reference to the [Orthopedic Surgeons Manual]. And the section that was referred to was the last page of the manual where they mention that a person with a chronic back injury who is required to in some way alter the, his activities because of the back problem * * * * What I was looking at, this paragraph C refers--I took a section of that, it said--this particular problem deals with excision of a disc, I'm sorry--yes, excision of a disc, but the second part is moderate persistent pain and stiffness necessitating modification of activities. Of course, they give a twenty percent disability. What I considered as part of that was that the patient had no excision of a disc, but that he had moderately persistent pain and stiffness, and it was aggravated by heavy lifting and necessitated modification of activities. So I felt as though this was close to the situation he had without the disc pathology.

Obviously, it was improper for the doctor to rely upon paragraph 3C inasmuch as the diagnosed condition was a chronic lumbar strain with only subjective complaints of pain which were not verified by any objective findings. As the doctor himself testified, the claimant had no surgical disc excision. The other portions of the OSM are reproduced above to demonstrate that none of the other specified categories is amenable to an interpretation which would support a finding of permanent impairment based upon the evidence summarized previously in this opinion.

Counsel for E/S, on cross-examination, also drew Dr. DiBartolo's attention to a section of the OSM which categorizes degrees of pain and suggests the manner in which pain should be considered as a contributing factor in determining permanent impairment. There are four gradations of pain: Grade I (Mild) to Grade IV (Very Severe). Grades I and II provide:

Grade I--Mild: When there is a firm conviction established through thorough observation and clinical tests that pain actually exists even though there may be no organic...