No. AS-90 | Fla. Dist. Ct. App. | Mar 19, 1984
Lead Opinion
Claimant seeks review of a workers’ compensation order by which his claim for
Claimant sustained a low back injury while lifting a concrete block, and testified that he continues to experience pain. The injury was diagnosed as a lumbar strain, and medical testimony indicates that upon maximum medical improvement claimant was without identifiable indicia of any physical impairment. The deputy expressly found that claimant’s pre-existing medical restrictions were “not entirely clear from the record” and that:
... claimant has failed to prove any permanent impairment in accordance with § 440.15(3)(a)3, Florida Statutes,_ It is reasonably clear to me from Dr. Wasy-lik’s testimony and from review of the American Medical Association Guide to the Evaluation of Permanent Impairment that the injury of which the claimant complains is covered under the Guides, and that [claimant] does not have any permanent physical impairment.
Unlike Trindade v. Abbey Road Beef ’N Booze, 443 So. 2d 1007" court="Fla. Dist. Ct. App." date_filed="1983-12-01" href="https://app.midpage.ai/document/trindade-v-abbey-road-beefn-booze-1888893?utm_source=webapp" opinion_id="1888893">443 So.2d 1007 (Fla. 1st DCA 1983), the present case is not one in which “permanent impairment cannot reasonably be determined under the criteria utilized in the Guides, in which event such permanent impairment may be established under other generally accepted medical criteria .... ” And even were this a proper instance for utilization of other medical criteria, the record in the present case provides competent substantial evidence, independent of the Guides, to support the deputy’s explicit finding that claimant has sustained no permanent physical impairment cognizable under § 440.15(3), Florida Statutes.
The order appealed is affirmed.
Concurrence Opinion
specially concurring.
I agree that the deputy correctly denied wage loss benefits, but I arrive at that conclusion in a slightly different way.
In Trindade we held:
[F]or purposes of determining eligibility for wage loss benefits in accordance with Section 440.15(3)(a) and (b), the existence and degree of permanent impairment resulting from injury shall be determined pursuant to the Guides, unless such permanent impairment cannot reasonably be determined under the criteria utilized in the Guides, in which event such permanent impairment may be established under other generally accepted medical criteria for determining impairment.
Claimant was seen by four physicians. Dr. Young, claimant’s treating orthopedic surgeon, stated that he had been unable to demonstrate any significant orthopedic injury. He referred claimant to a rheumatol-ogist who stated that, upon examination, claimant exhibited full range of motion with no resultant pain. Claimant was also seen by a Dr. Rodriguez at his attorney’s request, but no report was ever filed and no evidence was introduced regarding Dr. Rodriguez’ findings. Lastly, claimant was seen by Dr. Wasylik, another orthopedic surgeon, who testified that, although claimant complained of tenderness over various areas of his back, he found no objective signs of physical impairment, no abnormalities on x-ray, no neurological deficits and no indication of muscle spasm. He also stated that claimant had no impairment under the criteria utilized in the A.M.A. Guides. However, he stated that it was his “subjective opinion” that claimant had a permanent impairment which he estimated at 5%. Although expressing the view that the A.M.A. Guides did “cover the type of injury,” he said that those Guides are inadequate because they are restricted to range of motion criteria.
As I construe Trindade, a claimant may have a permanent physical impairment which, although not determinable by use of the A.M.A. Guides, may be compensable by reference to “other generally accepted
Dissenting Opinion
dissenting.
The deputy commissioner denied wage-loss benefits because he found that claimant failed to prove any permanent physical impairment under the American Medical Association’s Guide to the Evaluation of Permanent Impairment. Our prior decisions apparently influenced the deputy to consider impairment solely under the guide; and he did not undertake to decide whether, apart from the use of this guide, the evidence proved any permanent impairment. Since the guide is no longer the exclusive basis for determining permanent impairment,
. Trindade v. Abbey Road Beef 'N Booze, 443 So. 2d 1007" court="Fla. Dist. Ct. App." date_filed="1983-12-01" href="https://app.midpage.ai/document/trindade-v-abbey-road-beefn-booze-1888893?utm_source=webapp" opinion_id="1888893">443 So.2d 1007 (Fla. 1st DCA 1983); Peck v. Palm Beach County Board of Commissioners, 442 So. 2d 1050" court="Fla. Dist. Ct. App." date_filed="1983-12-16" href="https://app.midpage.ai/document/peck-v-palm-beach-cty-bd-of-cty-commrs-1108157?utm_source=webapp" opinion_id="1108157">442 So.2d 1050 (Fla. 1st DCA 1983).