Trindade v. Abbey Road Beef 'N Booze

• Decision Date: 01 December 1983
• Docket Number: No. AP-254,AP-254
• Citation: 443 So.2d 1007
• Parties: Patrick Thomas TRINDADE, Appellant, v. ABBEY ROAD BEEF 'N BOOZE, American Mutual Insurance Company, and Division of Workers' Compensation, Dept. of Labor and Employment Security, Appellees.
• Court: Florida District Court of Appeals

Page 1007

443 So.2d 1007

Patrick Thomas TRINDADE, Appellant, v. ABBEY ROAD BEEF 'N BOOZE, American Mutual Insurance Company, and Division of Workers' Compensation, Dept. of Labor and Employment Security, Appellees.

No. AP-254.

District Court of Appeal of Florida First District.

Dec. 1, 1983.

Richard A. Kupfer of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, P.A., West Palm Beach, for appellant.

Keith R. Pallo of Adams, Coogler, Watson & Merkel, West Palm Beach, for appellees, Abbey Road Beef 'N Booze and American Mut. Ins. Co.

Dan F. Turnbull, Asst. Gen. Counsel, State Dept. of Labor and Employment Sec., Tallahassee, for appellee, Div. of Workers' Compensation.

EN BANC OPINION

PER CURIAM.

On its own motion, the court voted to hear and determine this worker's compensation appeal en banc, under Rule 9.331(a) and (b), Florida Rules of Appellate Procedure, because of apparent conflict between the proposed decision and opinion of the regular three-judge panel, and prior decisions of this court. ¹ The proposed opinion (to which a majority of the members of the court sitting en banc concur as to the result) has been withdrawn, and the following is adopted as the decision and opinion of the court.

This is an appeal from an order of the deputy commissioner (DC) denying wage-loss benefits upon a finding that the claimant had not sustained a permanent impairment under the American Medical Association's Guides to the Evaluation of Permanent Impairment (1977) ("AMA Guides "). The DC relied upon our decision in Mathis v. Kelly Construction Company, 417 So.2d 740 (Fla. 1st DCA 1982), to deny wage loss benefits, since the medical testimony reflected that Trindade had no loss of range of motion in his knee, and thus had no permanent impairment assignable under the AMA Guides.

Trindade concedes that Section 440.15(3)(a)3., Florida Statutes (1979), as interpreted by this court in Mathis, purports to require the use of the AMA Guides to determine the existence and degree of permanent impairment. However, Trindade argues that although the AMA Guides "cover" knee impairments, the Guides do not provide a permanent impairment rating for his particular type of knee injury, and he therefore should not be denied wage loss benefits. Trindade further urges that to the extent it would appear to preclude his recovery of benefits, this court should reconsider Mathis. We agree that since Trindade's knee injury is one involving no loss of range of motion, no permanent impairment rating is ascertainable by the use of the Guides. Nevertheless, contrary to the result apparently dictated by our Mathis decision, we find that Trindade has sustained a permanent impairment and is entitled to wage loss benefits. We therefore reverse the deputy commissioner's order.

Trindade suffered a knee injury in an accident arising out of and in the course of employment on November 21, 1979. The treating orthopedic surgeon, Dr. Zeide, rated Trindade's knee instability as resulting in a five to ten percent permanent impairment based on the American Academy of Orthopedic Surgery Guides. His diagnosis was that Trindade had torn cartilage and torn anterior cruciate ligament, causing his knee to buckle on occasion, and recommended a knee cage to limit the motion of his knee. Dr. Zeide testified that he was unable to give a permanent impairment rating to the injury based on the AMA Guides as they dealt only with loss of range of motion in rating knee disability, and Trindade's knee had instability due to excessive range of motion.

In Mathis, we determined that Section 440.15(3)(a)3. survived a due process attack and was constitutional as applied because the particular injury, a knee joint injury, was "covered" by the AMA Guides, but since his knee injury did not involve loss of range of motion, Mathis could not be assigned a permanent impairment rating under the Guides. Whether the result in Mathis might have been different had the court been faced with the same compelling facts as in this case (the nature of Mathis' knee joint injury is not described in the opinion), or had the court been privileged to hear the same arguments as presented in this case (including those presented in the briefs and oral argument of the Workers' Compensation Division), we are unable to state. Be that as it may, the Mathis opinion did not fully address the application and effect of the statute in cases (such as the one before us) in which the injury to a part of the body nominally covered by the Guides results in permanent impairment which manifests itself in a way other than by loss of range of motion.

Our efforts to give the Guides exclusive effect, and by doing so to facilitate the goal of uniformity (in determining the existence of and in rating permanent impairment) expressly sought by the enactment of Section 440.15(3)(a)3., have been undertaken in anticipation of the adoption by the Division of a more comprehensive schedule for determining the existence and degree of permanent impairment as mandated by the same statute. See, Decor Painting & Iowa Mutual Insurance Co. v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981); Mathis v. Kelly Construction Company, 417 So.2d 740 (Fla. 1st DCA 1982); Jones Mahoney Corporation v. Hutto, 421 So.2d 703 (Fla. 1st DCA 1982); Morrison & Knudsen/American, etc. v. Scott, 423 So.2d 463 (Fla. 1st DCA 1982); Paradise Fruit Company v. Floyd, 425 So.2d 9 (Fla. 1st DCA 1982); Refrigerated Transport Company v. Edmond, 428 So.2d 338 (Fla. 1st DCA 1983); and Cabrera v. Universal Trusses, Inc., 429 So.2d 768 (Fla. 1st DCA 1983). More than four years have now passed since the legislature imposed upon the Division the duty of establishing such a comprehensive guide, and mandated the use of the AMA Guides as a temporary schedule. In the meantime, it has become increasingly difficult (as attested by the opinions of this court reflecting the actual experience of the litigants, their counsel, and the deputy commissioners) to reconcile the limited scope and coverage of the Guides with the broader commas of Chapter 440 itself, which has as its fundamental purpose the compensation (as well as rehabilitation) of injured workers. ²

Accordingly, although our decisions have reflected our view that the legislature's directive to utilize the Guides is mandatory, and that they must be applied when the injury in question is "covered" therein, see, e.g., Paradise Fruit Company v. Floyd, supra, we also recognized that certain injuries and conditions that are medically determined to result in permanent impairment are "not covered" in the Guides, and when that is the case the claimant may not be made to suffer the consequences of such omissions. Rhaney v. Dobbs House, Inc., 415 So.2d 1277 (Fla. 1st DCA 1982). In Rhaney, we held that "[u]nder such circumstances the permanent impairment can be proved by qualified expert testimony based on the training, experience, and expertise of the witness or on other accepted medical guides or schedules prepared by specialist groups or associations such as the Academy of Orthopedic Surgeons." Id. at 1279-80. Subsequent cases have reflected and extended the rationale of Rhaney so as to find entitlement to benefits with respect to injuries which we have determined to be "not covered" by the Guides. Quality Petroleum Corporation v. MIHM, 424 So.2d 112 (Fla. 1st DCA 1982) (injury to right leg--soft tissue scarring, impairment of circulation, probability of recurring infection, recurring swelling and pain); Florida Sheriffs Youth Fund v. Harrell, 438 So.2d 450 (Fla. 1st DCA 1983) (soft tissue injury in sacroiliac--spasm, impairment of capability because of sensitivity to stress, bending, lifting, prolonged sitting, etc.).

If our former approach as indicated in Mathis and other cases was justified by the "temporary" status given to the Guides by the legislative enactment, it no longer is. The Division has informed us, both in its brief and in oral argument before this court, that it not only has been unable to produce a comprehensive schedule as mandated by the statute: It expresses doubt that a suitable schedule can be prepared, and it is anticipated that no such schedule will be forthcoming. Instead, the Division informs us that it advocates the continued use of the AMA Guides, to the extent applicable, and that it proposes to adopt the revised and up-dated version of the Guides expected to be published in 1984.

It may be observed that our experience in trying to formulate a standard based on the "covered" or "not covered" dichotomy for determining when the Guides permit a finding of permanent impairment, and when they do not, offers little hope for a workable solution. One fundamental reason for this is that the Guides apparently were never intended to be used in this manner. Thus, it is unrealistic for us to find that certain types of "injuries" are "not covered" by the Guides (and therefore other medical standards can be used) when, in actuality, the Guides (Chapter I particularly) do not generally speak in terms of "injuries," to the body and its extremities but speak primarily in terms of the consequences or results of injury. As already indicated above, for the most part Chapter I of the Guides and the tables therein concern themselves with a single type of result--loss of range of motion. Other chapters, such as those dealing with peripheral spinal nerves, respiratory and cardiovascular systems, mental illness, etc., of course use other appropriate criteria.

Although a contrary conclusion is implicit in Mathis and other decisions, there appear to be valid arguments against the motion that the legislature, simply by mandating use of the Guides on a temporary basis, intended to establish a single "range of motion" test of permanent impairment. If this were the case, then our Quality Petroleum and Harrell decisions were incorrectly decided. Significantly, by the language of the statute the Division is not restricted to the...