Sutton v. Quality Furniture Co. , 191 Ga. App. 279 ( 1989 )

Sognier, Judge,

dissenting.

I respectfully dissent. While I agree with the majority that OCGA § 34-9-1 (5) contemplates the use of recognized disability ratings guides other than the AMA Guides to Evaluation of Permanent Impairment, I find no authority for use of a physician’s subjective opinion made without reference to any disability ratings guide.

The statute clearly authorizes the use of “recognized medical books or guides” in calculation of disability or bodily loss ratings. OCGA § 34-9-1 (5); see Ga. Laws 1982, p. 2485, amending former Code Ann. § 114-102 (now OCGA § 34-9-1) to “provide for the use of certain guides to the evaluation of permanent impairment.” However, in the case at bar there is no evidence appellant’s physicians consulted any ratings guides when formulating their opinions. Dr. Sidney Bell stated in his letter, admitted into evidence below, that he assigned appellant a disability rating of fifteen percent “based on the pain secondary to your chronic tendinitis,” and that “I cannot rate [appellant] by the AMA guidelines, I can only rate him due to his pain.” Dr. Jerry Weaver agreed with Dr. Bell’s percentage loss rating because of appellant’s “loss of motion with the pain-spasm-pain cycles during periods of exacerbation.” Neither physician mentioned the use of any other recognized guide in his evaluation.

Decided March 13, 1989 Rehearing denied April 10, 1989 Mundy & Gammage, E. Lamar Gammage, Jr., George E. Mundy, for appellant. Judy Greenbaum Croy, for appellees.

The cases cited by the majority as persuasive do not support the majority’s conclusion that the medical opinions submitted in the instant case were sufficient under Georgia law. In Adams v. Indus. Comm., 113 Ariz. 294 (552 P2d 764, 765) (1976), the claimant’s physician computed the impairment percentage by a published United States Department of Labor standard, whereas the medical experts in the case at bar based their opinions solely upon subjective assessments of appellant’s condition without apparent reference to any “recognized medical books or guides” as required by OCGA § 34-9-1 (5). The Florida cases the majority cites, Dayron Corp. v. Morehead, 509 S2d 930 (Fla. 1987); OBS Co. v. Freeney, 475 S2d 947 (Fla. App. 1985); and Quality Petroleum Corp. v. Mihm, 424 S2d 112 (Fla. App. 1982) are not authoritative because each construes a Florida statute which permits but does not require the use of “generally accepted schedules” such as the AMA Guides. See Dayron, supra at 931, n. 2. Similarly, in Gomez v. Indus. Comm., 148 Ariz. 565 (716 P2d 22) (1986), although the court discussed the procedure to be used when the AMA Guides do not address the claimant’s loss, it then found the AMA Guides provided an accurate measure of the degree of impairment at issue and thus did not determine what alternative standard would have been sufficient.

I find that OCGA § 34-9-1 (5) requires that a disability rating be based either on the AMA Guides or upon another published book or guide recognized by the medical profession, and as there is no evidence the medical opinions here were based upon such alternative guides I would affirm the judgment of the superior court.

I am authorized to state that Judge Beasley joins in this dissent.