S and S Stove Repair, Inc. v. Dumas, AX-489
| Decision Date | 22 March 1985 |
| Docket Number | No. AX-489,AX-489 |
| Citation | 465 So.2d 644,10 Fla. L. Weekly 763 |
| Parties | 10 Fla. L. Weekly 763 S AND S STOVE REPAIR, INC., and Travelers Insurance Company, Appellants, v. James DUMAS, and the Division of Workers' Compensation, Appellees. |
| Court | Florida District Court of Appeals |
Daniel J. Sullivan of Gladson & Sullivan, Miami, for appellants.
David H. Levine of Levine, Schnepper, Busch & Stein, P.A., Miami; Hershoff & Levy, Miami, for appellees.
The employer/carrier (E/C) appeal from a workers' compensation order awarding Dumas PPD benefits based on an impairment of 40% of the body as a whole. The E/C contend the deputy erred in finding 100% impairment of claimant's left leg based on the fusion of the ankle. We agree and reverse. Also, the E/C contend the finding of permanent impairment to claimant's left knee is not supported by competent substantial evidence and that the deputy erred in finding a permanent impairment to the body as a whole. We disagree and affirm.
Dumas fractured his left ankle which subsequently required arthroplasty. Later an ankle fusion was required using bone from his tibia. The ankle was fused at 10 degrees of plantar flexion.
Several years later Dumas suffered an intertrochanteric fracture of the left femur about three inches below the hip joint. Shortly thereafter, he fractured his left tibia at the site where the bone was removed for the ankle fusion.
At the hearing, the E/C presented the testimony of Dr. Richards, the orthopedic surgeon who performed the ankle fusion on Dumas, as well as medical reports from a Dr. Gregory, an orthopedic surgeon who examined claimant on 27 January 1982.
Dr. Richards estimated Dumas' permanent physical impairment as 58% of the left lower extremity. Using the 1977 AMA Guides at page 31, he gave 40% for joint anklyosed at 10 degrees of plantar flexion and added 10% for a 10-degree loss of inversion and eversion.
Dr. Gregory's report stated that claimant's ankle is fused at approximately 10 degrees of plantar flexion. This fusion together with the left hip joint limitation constitutes a 50% impairment of function of his left lower extremity according to the AMA tables. Under state law, this would probably convert to a 50% permanent, partial impairment of the left leg.
Dr. Gilbert, claimant's expert, saw Dumas on 6 August 1982. In his deposition, he testified that because claimant had his ankle fused so that no motion at all was possible, he had a 100% disability of his left leg (30% for each of the four lost ranges of ankle motion, equaling 120%, but 100% is the maximum assignable disability). He testified that the left knee was anklyosed at 40 degrees of extension for a 27% impairment of the leg, and that the hip injury equaled 20% of the leg. He combined these ratings using AMA tables, to arrive at a permanent, partial impairment of 40% of the whole man.
Because of the discrepancy between the disability rating assigned by Drs. Richards and Gregory and that stated by Dr. Gilbert, the deputy allowed a supplemental hearing on 15 March 1983 so that Gilbert could clarify the method by which he arrived at his rating. With regard to the ankle injury, Dr. Gilbert stated that tables at pages 31 and 32 of the 1977 Guides allowed 30% for each of four lost ranges of motion (flexion, extension, inversion and eversion) which he had awarded. He stated that if only two ranges had been involved, he would have chosen the highest percentages, but because all four were involved addition of the percentages was required. Concerning the knee, the doctor stated that the rating for the knee should have been based on loss of motion, not anklyosis, but that it was still 27% of the leg, based on a 40% loss of extension. The hip joint's various losses of motion totaled 20%. The doctor then used conversion tables to convert these leg ratings to the impairment of the body as a whole, and arrived at 40% of the body. This conversion was made, according to the doctor because The doctor went on to testify that the hip injury was to the body and not just the leg "because the muscles attached to the trochanter are those attached to the pelvis itself and they are in the body on the pelvis...."
The deputy issued her order recognizing that the primary issue was whether the claimant's injuries constituted a disability to the body as a whole or was limited to the leg. She resolved it by finding that the claimant has been left with a 40% permanent partial disability or impairment of the body as a whole on an anatomic basis. She specifically accepted Dr. Gilbert's opinion as more consistent with logic and reason and her own determinations that the claimant's intertrochanteric fracture and the pain resulting therefrom extends to the hip joint or trunk of the body and thus constitutes an impairment of the body as a whole.
Dr. Gilbert's finding that claimant suffered a 100% impairment of his lower extremity because of his ankle injury is erroneous. The testimony adduced at the hearing and the supplemental hearing clearly establish that claimant's ankle was fused (anklyosed) at 10 degrees of plantar flexion, equaling 40% impairment of the lower extremity. 1977 AMA Guides, Table 36, page 31. Dr. Gilbert testified that, with regard to inversion/eversion, the ankle was fused at the neutral position, equaling 30% impairment of the lower extremity. Guides, Table 37, page 32 (Ex. 3).
He calculated the percentage of impairment of the ankle by adding 30% for each lost range of motion (dorsi and plantar flexion, and inversion/eversion--see Tables 36 and 37) to reach the maximum disability allowed of 100%. However, on page 32, the guides indicate that such addition only occurs when one is calculating lost ranges of motion, not anklyosis. In the latter case, one takes the largest anklyosis impairment value and that becomes the impairment of the lower extremity--40% for 10 degrees plantar flexion as against 30% for fusion at the neutral position with regards to inversion/eversion means that 40 degrees permanent impairment of lower extremity is the correct value.
Therefore, Dr. Gilbert misapplied the Guides in determining the percentage of permanent impairment...
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