Smith v. School Bd. of Polk County

• Decision Date: 23 December 1994
• Docket Number: No. 93-2861,93-2861
• Parties: 20 Fla. L. Weekly D160 Mollie B. SMITH, Appellant, v. SCHOOL BOARD OF POLK COUNTY and Alexsis Risk Management, Appellees.
• Court: Florida District Court of Appeals

Page 1057

647 So.2d 1057

20 Fla. L. Weekly D160

Mollie B. SMITH, Appellant, v. SCHOOL BOARD OF POLK COUNTY and Alexsis Risk Management, Appellees.

No. 93-2861.

District Court of Appeal of Florida,

First District.

Dec. 23, 1994.

Jay M. Fisher, Orlando, Bill McCabe, Longwood, for appellant.

Charles E. Bentley and Michael P. Sampson of Holland & Knight, Lakeland, for appellees.

ERVIN, Judge.

Appellant/claimant, Mollie Smith, challenges an order of the judge of compensation claims (JCC) in which he found, among other things, that her industrial accident caused merely a temporary exacerbation of a preexisting condition. Although we find competent, substantial evidence (CSE) to support the JCC's finding that Smith is not permanently and totally disabled, there is no CSE to support the finding of temporary exacerbation. We therefore affirm in part, reverse in part, and remand.

On April 6, 1992, while working as a bus attendant for the employer, School Board of Polk County, assisting in loading and unloading exceptional-education students and traveling with them, Smith suffered a compensable accident when she fell from a seat in a turning bus and injured her lower back.

The JCC's findings that claimant's back problems were the result of a temporary exacerbation of a preexisting condition, because of her history of arthritis aggravated by her obesity, and that she has no permanent impairment (PI), are not supported by competent, substantial evidence. Although Dr. Arturo Perez, Smith's family physician between July 1988 and October 1992, emphatically believes that claimant could eliminate her back problems if she were to lose a significant amount of weight, he never altered his opinion that the bus accident aggravated her preexisting arthritic condition. Moreover, the last time Dr. Perez had rendered care for Smith's back complaints was 15 months before her bus accident. During the two years claimant worked as a bus attendant, she was never disabled in any way because of the condition and she testified that she had no difficulty performing her job. Indeed, Dr. Perez testified that claimant never reported, before the industrial accident, that her work in any way had aggravated her back pain.

Although Dr. Perez noted in July 1992 that Smith's back pain was asymptomatic, which the JCC found significant, the doctor's subsequent report in September indicated "low-back syndrome." By then, he had started her on an anti-inflammatory drug, Prednisone, for temporal arteritis. ¹ He said this medication would have alleviated her back pain, "and that will explain why she's not complaining of the back at this time." When asked whether the industrial injury was temporary or caused a permanent impairment, Dr. Perez said he was unwilling to venture an opinion but would defer to those of Drs. Sullivan and Pfaff regarding permanency, because they were back specialists.

Dr. Patrick D. Sullivan, an orthopedic surgeon who treated claimant, testified that Smith has a 5.25 percent PI of her back, resulting from the work-related trauma to her preexisting arthritic lesions. He concluded that she can do light work uninterruptedly so long as she avoids repetitive twisting or bending, prolonged sitting, and lifting over 20 pounds. Dr. Robert Pfaff, an orthopedist who performed an independent medical examination of Smith, did not offer a specific opinion as to an amount of PI in relation to her preexisting problems. He said that her back complaints were primarily due to her age and obesity, but were secondary to her fall on the bus. Although her impairment...