Upson v. Orange County School Bd., 93-1299

• Decision Date: 29 September 1994
• Docket Number: No. 93-1299,93-1299
• Citation: 644 So.2d 108
• Parties: 19 Fla. L. Weekly D2096 Willie UPSON, Appellant, v. ORANGE COUNTY SCHOOL BOARD and Gallagher Bassett Services, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 108

644 So.2d 108

19 Fla. L. Weekly D2096

Willie UPSON, Appellant, v. ORANGE COUNTY SCHOOL BOARD and Gallagher Bassett Services Inc., Appellees.

No. 93-1299.

District Court of Appeal of Florida First District.

Sept. 29, 1994.

Jordan S. Levine, Meyers, Mooney, Meyers & Bailey, Orlando, for appellant.

Timothy F. Stanton, Moore & Peterson, P.A., Orlando, for appellees.

KAHN, Judge.

In the order before us on review, the Judge of Compensation Claims (JCC) awarded appellant Willie Upson permanent total disability benefits. The finding of permanent and total disability (PTD) has not been challenged on appeal, and is supported by competent substantial evidence in the record. The JCC further determined, however, that 50% of appellant's PTD benefits would be apportioned out due to a "rapidly advancing degenerative arthritic condition, which has progressively developed, particularly since November of 1992," and which was not work-related. This apportionment is not supported by competent substantial evidence.

In 1984 and 1987, Mr. Upson suffered work related injuries to his right knee. Since the first accident in 1984, Mr. Upson has undergone treatment from Dr. Frederick Schroeder, an orthopedist, who has performed four surgeries on the right knee, including a total knee joint replacement in June of 1988. According to Dr. Schroeder, Upson reached maximum medical improvement (MMI) on December 16, 1988, with a 20% permanent partial impairment of the body as a whole. As of the date of MMI, Dr. Schroeder imposed numerous restrictions upon the patient: 1) no more than two hours of walking a day; 2) four to six hours total of sitting a day, zero to two hours at a time; 3) driving a car ten to thirty minutes at a time; 4) occasional lifting of no more than ten pounds; 5) no repetitive movement with feet or foot controls; 6) no limitations on grasping, pushing, pulling or fine manipulations; 7) occasional bending; 8) occasional reaching; 9) no squatting; 10) no kneeling; 11) no climbing; 12) knee braces required; and 13) standing limited to one hour in an eight hour day. As a result of these restrictions, Dr. Schroeder limited Mr. Upson to sedentary type activities.

Some ten months after MMI, Dr. Schroeder's chart makes note of an arthritic condition in Mr. Upson's left knee. The doctor characterized this condition as degenerative and unrelated to any industrial accident. The doctor explained, however, that any physical restrictions stemming from the left knee would be the same as those resulting from the right knee injury.

The only suggestion in the record of the more generalized degenerative arthritic condition mentioned by the JCC is in Mr. Upson's testimony at the merits hearing. At that time, Mr. Upson, who was a model of candor, responded to questions from the JCC by indicating, "I got arthritis all through my body."

The parties agree that when both a compensable condition and an unrelated noncompensable condition contribute to permanent total disability the effects of the noncompensable condition must be apportioned out. Curtis v. Bordo Citrus Products, 566 So.2d 328 (Fla. 1st DCA 1990). Appellant observes that, while in some cases it may be necessary to apportion the effect of a noncompensable injury, a JCC may not simply use equal...