Opinion
No. XX-467.
July 23, 1981.
Appeal from the Deputy Commissioner.
Bernard J. Zimmerman William G. Berzak of Akerman, Senterfitt Eidson, Orlando, for appellant.
Bill McCabe of Shepherd, McCabe Cooley, and Edward H. Hurt of Hurt Parrish, Orlando, for appellee.
In this worker's compensation action, the appellants, employer/carrier, contend that the deputy commissioner (the deputy) erred in adopting the impairment rating given by one of the examining physicians, Dr. Flynn, which was determined without strictly complying with the American Medical Association's Guides to the Evaluation of Permanent Impairment referred to in Section 440.15(3)(a)3, Florida Statutes (1979). We agree and reverse with instructions.
The applicable tables are set out in the appendix attached to the conclusion of this opinion.
The claimant broke his ankle in connection with a compensable accident on September 14, 1978. Dr. Reckles, the claimant's treating physician, performed surgery on the ankle, fixing the fracture and applying bone screws, which were later removed. The parties stipulated that the claimant reached MMI on September 5, 1979.
The central dispute on appeal concerns the deputy's finding as to the permanent physical disability rate which was determined in the midst of a dispute among three physicians as to how AMA tables 36 and 37 at pages 31 and 32 of the AMA guides should be applied.
Dr. Reckles testified, based on his observation of the claimant's ankle, that each one of the claimant's joint ankle motions was not totally restricted. He explained that if the subtalor joint is rigid and not moving one degree, then, and only then is it ankylosed (complete fusion of the joints). He took the position that "ankylosis — for purposes of applying the AMA ankylosis tables — meant loss of motion in all the joints of the ankle." His ultimate conclusion was that the claimant's ankle was not ankylosed, just severely restricted. Therefore, he utilized the loss of motion tables, instead of the ankylosis tables and arrived at an impairment rating of 21 percent.
Dr. Flynn, however, took the position that the claimant's ankle, while not technically ankylosed, was ankylosed for all practical purposes at the subtalor joint. Due to this conclusion, Dr. Flynn partially used the ankylosis tables in arriving at his rating. He combined the restricted motion and ankylosis tables as follows: First, utilizing the restricted motion tables, he determined that claimant suffered a seven percent disability from a loss of 20 degrees of dorsiflexion and a 11 percent disability from a 10 degree loss of plantar-flexion. He next utilized the ankylosis portion of the tables and arrived at a 30 percent disability rating of the subtalor, added the 30 percent to the two restricted motion ratings, and arrived at a composite 48 percent impairment rating. To that he added a 15 percent factor for pain which totaled 63 percent and which he rounded to 65 percent. Prior to the hearing, he had arrived at a 65 percent rating without utilizing the AMA tables.
Finally, Dr. Samford, a consulting physician, opined that Dr. Flynn had improperly used the AMA tables because the claimant's ankle — which had some motion — was not ankylosed. By referring to the restricted motion tables and by adding a percentage factor for pain he arrived at a 40 percent impairment rating. The deputy accepted Dr. Flynn's impairment rating and thus determined that the claimant's right lower extremity was 65 percent permanently partially disabled. The deputy accepted Dr. Flynn's view that the claimant's ankle was for all practical purposes ankylosed. The deputy rejected Dr. Reckles opinion, largely because of his earlier inconsistent opinions. He also rejected Dr. Samford's opinion because Dr. Samford did not personally observe the claimant.
Dr. Flynn's opinion was invalid because his rating was not made in accordance with Section 440.15(3)(a)3 which provides:
In order to reduce litigation and establish more certainty and uniformity in the rating of permanent impairment, the division shall establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings. The schedule shall be based on generally accepted medical standards for determining impairment and may incorporate all or part of any one or more generally accepted schedules used for such purpose, such as the American Medical Association's Guides to the Evaluation of Permanent Impairment. On August 1, 1979, and pending the adoption, by rule, of a permanent schedule, Guides to the Evaluation of Permanent Impairment, Copyright 1977, 1971, by the American Medical Association, shall be the temporary schedule and shall be used for purposes hereof. (e.s.)
The Division has yet to adopt by rule a permanent schedule, and thus the American Medical Association Guides are applicable. Due to the stated intent of the legislature, and its multiple use of the word "shall", we construe the statute as imposing a mandatory obligation, cf. Tascano v. State, 393 So.2d 540 (Fla. 1980), upon the deputy commissioner to employ solely the AMA guides when determining a disability rating based solely on anatomical impairment. Cf. Tallahassee Memorial Regional Medical Center v. Snead, 400 So.2d 1016 (Fla. 1st DCA 1981). Dr. Flynn's rating clearly went beyond the tables when he added a subjective 15 percent factor for pain based upon his composite impairment rating from the tables. Additionally, his application of the AMA tables does not comport with logic and reason. While we are hesitant to interpret these rather technical medical tables, it is our obligation to do so because the statute has mandated the use of the AMA tables, and to that extent those tables are law. Under AMA table 36 are two subtables, one for restricted motion, and another for ankylosis. Following those tables are instructions for computing disability for each respective subtable. The instructions do not indicate that the computation of the two subtables can be combined or intermingled; rather, the manner in which each subtable and their respective instructions are segregated implies the opposite conclusion. Here the deputy's disability rating was premised on little more than an abstract interpretation of the AMA guides mandated by statute. Cf. Anheuser-Busch, Inc. v. Dept. of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Bowling v. Dept. of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); ABC Liquors, Inc. v. Dept. of Business Regulation, 397 So.2d 696 (Fla. 1st DCA 1981). Dr. Flynn did not give any testimony in an attempt to explain or justify his combining the ankylosis and loss of motion tables. Moreover, Dr. Flynn's use of the AMA tables is suspect, giving rise to the conclusion that they were used only to rationalize the previous impairment rating he had given the claimant which had been determined without the use of the tables.
In this opinion, it is not our intention to foreclose the deputy's right to choose between conflicting medical opinions as to whether claimant's ankle was ankylosed or severely restricted. We simply hold that once a determination is made in favor of one diagnosis, the table applicable to it must be, consistently with the statute, exclusively utilized and may not be combined with any other table, nor may subjective factors such as pain and suffering be superimposed so as to produce a rating in excess of that permitted within the pertinent table.
Reversed and remanded for further consistent proceedings.
ROBERT P. SMITH, Jr., C.J., and McCORD, J., concur.
Example: 40° (full plantar-flexion) ................. 70 Technique of Measurement: Inversion-Eversion Inversion: Eversion: Example: Example: fn_ fn_ 20° (full eversion) ....................... 70 When Two Ranges of Motion are Involved separately Impairment of Example Lower Extremity DORSI-FLEXION PLANTAR-FLEXION INVERSION EVERSION separately largest Impairment of Example Lower Extremity DORSI-FLEXION INVERSION
position of function
position of function