Tampa Bay Moving Systems, Inc. v. Frederick
| Citation | 433 So.2d 628 |
| Decision Date | 23 June 1983 |
| Docket Number | No. AN-182,AN-182 |
| Parties | TAMPA BAY MOVING SYSTEMS, INC., and Continental Insurance Company, Appellants, v. Gerald K. FREDERICK, Appellee. |
| Court | Florida District Court of Appeals |
C. Kenneth Stuart, Jr., of Holland & Knight, Bartow, for appellants.
Clifford R. Opp, Jr., of Peavyhouse, Giglio, Grant, Clark, Charlton & Opp, Tampa, for appellee.
The employer and carrier (E/C) appeal an order of the deputy commissioner finding that claimant suffered a six percent permanent impairment of the body as a whole and awarding wage loss benefits. Among other things, the E/C argue that the finding of a permanent impairment was not based on competent substantial evidence. We disagree and affirm.
Appellee was injured in the course and scope of his employment when he fell off the back of a moving van while loading furniture. He was initially treated for a broken wrist, but because he continued to complain of headaches and back and leg pain he was referred to Dr. Eckart, an orthopedic physician. In a deposition taken February 21, 1981, Dr. Eckart stated that he was unable to corroborate claimant's symptomatology with his physical examination, and was of the opinion that claimant had probably suffered a simple sprain that should clear up. By a letter dated November 23, 1981, Dr. Eckart informed the attorney for the E/C that in his opinion maximum medical improvement had been reached on September 14, 1981, with no permanent impairment. However, he continued to see claimant and a second electromyogram was performed sometime between November of 1981 and March 11, 1982, when Dr. Eckart responded to further inquiries from the E/C. In that letter, Dr. Eckart stated:
In my letter dated to you November 23, 1981, it was my opinion that the patient had sustained no permanent physical impairment. Since then, I have seen the patient back in my office on January 15, 1982, 1-28-82 and 2-25-82. An electromyogram was repeated and it again showed evidence of a trace of acute denervation in the right lower extremity. This would account for the patient's continued symptomatology. The symptomatology is a result of an injury. I feel that he has sustained a permanent injury. He is not a candidate for surgery. He may at the present continue in his present occupation without any restrictions or limitations. It is felt that he is with a 6% permanent physical impairment to his body as a whole as a result of a sprain to his lumbar spine.
A hearing was held on May 17, 1982, on appellee's claim for temporary partial disability benefits, wage loss benefits and continued medical treatment. Dr. Eckart's medical reports, including the above-quoted letter, and his February 1981 deposition were admitted into evidence. In adopting Dr. Eckart's impairment rating, the deputy found:
That as per medical report of Dr. James R. Eckart, M.D., dated March 11, 1982, said report having been stipulated into evidence, I find that the Claimant reached maximum medical improvement on February 25, 1982, and sustained a 6% permanent partial impairment to the body as a whole as a result of a sprain of the lumbar spine. Although Dr. Eckart's report of March 11, 1982, does not refer to the Guides to the Evaluation of Permanent Impairment as set forth by the American Medical Association, I find that application of those guides to this injury would support Dr. Eckart's opinion. Based on the testimony of the Claimant, I also find that the impairment is a result of the industrial accident which occurred on February 12, 1981, and the injury has limited the Claimant's ability to lift and carry on a sustained basis. (emphasis supplied)
The jist of the E/C's attack on the above-quoted finding may be summarized as an argument that, since Dr. Eckart did not specifically state his opinion to be...
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