OBS Co., Inc. v. Freeney, BD-331

• Decision Date: 05 September 1985
• Docket Number: No. BD-331,BD-331
• Citation: 475 So.2d 947,10 Fla. L. Weekly 2084
• Parties: 10 Fla. L. Weekly 2084 OBS COMPANY, INC. and Mission Insurance Company, Appellants, v. Donald FREENEY, Appellee.
• Court: Florida District Court of Appeals

Page 947

475 So.2d 947

10 Fla. L. Weekly 2084

OBS COMPANY, INC. and Mission Insurance Company, Appellants, v. Donald FREENEY, Appellee.

No. BD-331.

District Court of Appeal of Florida,

First District.

Sept. 5, 1985.

Rehearing Denied Oct. 11, 1985.

John S. Smith of Marlow, Shofi, Smith, Hennen, Smith & Slother, Tampa, for appellants.

Barry M. Salzman of Chambers & Salzman, St. Petersburg, for appellee.

BOOTH, Chief Judge.

This cause is before us on appeal from a workers' compensation order awarding claimant temporary partial disability benefits and wage-loss benefits. The issues presented are: (1) whether the deputy commissioner erred in awarding wage-loss benefits when claimant had no permanent impairment under the AMA Guides to the Evaluation of Permanent Impairment (Guides); and (2) whether the deputy commissioner erred in awarding temporary partial disability benefits when claimant had been released to perform employment with no limitations or restrictions other than avoiding wet plaster or wet cement.

On February 29, 1984, claimant, a 37-year-old high school graduate, developed contact dermatitis as a result of exposure to wet cement while working for the employer, OBS Company, Inc. (OBS). Claimant's treating physician, Dr. Harold Seder, determined that claimant's dermatitis was an allergic reaction rather than an irritational reaction, which means that each time claimant comes in contact with wet cement, he can expect to have the dermatitis. Claimant had worked as a journeyman plasterer for three or four years prior to the onset of the dermatitis. At the time he was disabled by dermatitis, he was earning ten dollars per hour, with an average weekly wage of $400. The parties stipulated that claimant reached maximum medical improvement on July 30, 1984.

Dr. Seder was of the opinion that, based upon the Guides, claimant had sustained no ratable permanent impairment. However, Dr. Seder testified that, if he were not required to follow the criteria in the Guides, he was of the opinion that claimant has a permanent physical impairment to the extent that he must avoid contact with wet cement and therefore cannot work as a plasterer. When asked whether he could give a rating of claimant's permanent impairment if claimant remained in his occupation as a plasterer, Dr. Seder responded that he could not but that, if claimant continued in such occupation, claimant would be totally incapacitated and unable to work at all.

Claimant had worked approximately three to four years before becoming disabled by the contact dermatitis on February 29, 1984. He has had some training in horticulture and block masonry. His work history includes janitorial work, working in a lumberyard, block masonry, and lawn maintenance. After his release to work on June 4, 1984, claimant unsuccessfully searched for a job. Most of the employers claimant contacted or with whom he filed an application were not hiring. Claimant admitted that he tried to obtain work which paid more than the minimum wage.

The deputy commissioner found that claimant was temporarily partially disabled from April 16, 1984, to May 15, 1984, and from June 4, 1984, to July 30, 1984, during which times he conducted a good-faith job search. He further found that claimant had performed an adequate job search after he had reached maxiumum medical improvement on July 30, 1984, that claimant's wage loss was causally related to his occupational disease, and that claimant had a permanent physical impairment as a result of his occupational disease.

The order of the deputy commissioner awarding temporary partial disability benefits and wage-loss benefits is, in pertinent part, as follows:

The main issue of this claim is whether the claimant has a permanent physical impairment that makes him eligible to receive wage loss benefits. Some historical background on the compensability of the claimant's condition may be helpful. Contact dermatitis due to cement has long been recognized as an occupational disease in Florida. Accord: Phelps v. Gunite Construction and Rentals, Inc., 279 So.2d 829 (Fla.1973). Likewise, under pre-Wage Loss law, when an employee suffered "disability" as a result of an occupational disease, "disability' [sic] being defined then, as now, by Chapter 440 as the "incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury", an injured worker was entitled to receive permanent indemnification benefits, either partial or total. It is obvious to the undersigned, based upon findings more specifically set out in this order, that were this claim governed by the law in effect prior to institution of the wage loss concept, the claimant herein would have a permanent impairment of his wage earning capacity and would be entitled to permanent partial disability benefits. See, Martinez v. Robert Weber Construction Company, 181 So.2d 645 (Fla.1966), and Plantation Construction Company v. Ayers, 385 So.2d 1138 (Fla. 1st D.C.A. 1980).

However, under the Wage Loss law that was in effect at the time of the accident herein, in order to be eligible for wage loss benefits, an injured worker must incur a permanent impairment pursuant to the A.M.A. Guides unless such permanent impairment cannot be determined by the Guides, in which case such permanent impairment may be established under other generally accepted medical criteria for determining impairment. Accord: Trindade v. Abbey Road Beef 'n Booze, 443 So.2d 1007 (Fla. 1st D.C.A.1983). In the instant case, the claimant's doctor opined that under the examples and criteria set forth in Chapter 12, "The Skin", of the A.M.A. Guides, the claimant would have a zero percent impairment even though the claimant would not be able to return to his former employment. The doctor also opined that if the claimant continued to work in wet cement he would have a permanent impairment.

Chapter 12 of the Guides, dealing with the skin, states in the introductory paragraph that:

"This 'Guide' provides criteria for evaluating the effect that permanent impairment of the skin and its appendages has on an individual's ability to perform the activities of daily living".

American Medical Association Committee on Rating of Mental and Physical Impairment, Guides to the Evaluation of Permanent Impairment, Chapter XII, "The Skin", P. 143 (1971).

Additionally, the phrase, "activities of daily living" is specifically defined in the Guides as:

"Evaluation of permanent impairment is an appraisal of the nature and extent of the patient's illness or injury as it affects his personal efficiency in one or more of the activities of daily living. These activities are self-care, communication, normal living postures, ambulation, elevation, traveling, and non-specialized hand activities."

American Medical Association Committee on Rating of Mental and Physical Impairment, Guides to the Evaluation of Permanent Impairment, "Preface", P. iii, (1971).

Of note, is the conspicuous absence of reference to how a particular condition affects one's efficiency in personal physical activities peculiar to one's employment.

Essentially, the main issue in the instant case can be stated as follows: whether the so-called exclusivity of the Guides must be recognized with respect to injuries or conditions which, although "covered" in the Guides, do so only to the extent of providing a permanent impairment rating where the condition has resulted in some limitation in performance of some of the activities of daily living, where the existence of permanent impairment other than some limitation in the...