E.B. Malone Corp. v. Johnson

• Decision Date: 18 January 1983
• Docket Number: No. AB-15,AB-15
• Citation: 425 So.2d 622
• Parties: E.B. MALONE CORPORATION and Liberty Mutual Insurance Company, Appellants, v. Lemuel Blaine JOHNSON, Appellee.
• Court: Florida District Court of Appeals

Page 622

425 So.2d 622

E.B. MALONE CORPORATION and Liberty Mutual Insurance Company, Appellants, v. Lemuel Blaine JOHNSON, Appellee.

No. AB-15.

District Court of Appeal of Florida First District.

Jan. 18, 1983.

David J. Williams and Jon H. Anderson of Lane, Trohn, Bertrand & Williams, Lakeland, for appellants.

Michael B. Murphy of Stanley, Wines & Smith, Auburndale, for appellee.

PER CURIAM.

This cause is before us on appeal by the employer/carrier from a workers' compensation order awarding catastrophic loss benefits from the date of the accident through January 21, 1980, and temporary partial disability benefits thereafter at the fixed rate of $40 per week. The order further determined claimant's average weekly wage, awarded interest, penalties and costs, and reserved jurisdiction to determine attorney's fees. The employer/carrier raises numerous points on appeal. We affirm in part and reverse in part.

Claimant Johnson is a 20-year-old high school graduate who was employed by appellant E.B. Malone Corporation, a manufacturer of mattresses and box springs, as a roll pack machine operator. On October 4, 1979, as he prepared to feed the machine quilting material, Johnson sustained an industrial injury when his right hand became caught in a metal roller, resulting in abrasions and fractures of the proximal bones of his three middle fingers. No injury occurred to the palm of his hand or his thumb. Johnson went immediately to the emergency room of Lake Wales Hospital, where fixation pins were surgically placed into the middle three fingers. After a short hospitalization, Johnson was discharged, ambulatory, with his hand in a cast.

On October 11, 1979, Dr. Casingal, the treating orthopedic surgeon, removed the dressing and noted that Johnson's wound looked clean, the fingers were "alive," and x-rays were satisfactory. On November 16, the pins were removed from Johnson's fingers, and there was no sign of infection. X-rays showed the fractures were healing, and Dr. Casingal assigned Johnson exercises. Although Johnson's fingers remained "moderately stiff" for the next few weeks, Dr. Casingal encouraged Johnson to do exercises and felt that he could return to work by January 17, 1980.

On January 23, 1980, Johnson returned to work for E.B. Malone Corporation at the rate of pay he had received prior to the accident. He was initially assigned work as a material stager but, shortly thereafter, was returned to his former position as a roll pack machine operator at his own request. Johnson testified that, while he was able to work, he sometimes had trouble picking up large rolls of material with both hands. On March 11, 1980, he was terminated because of unexcused absences and unsatisfactory job performance.

On March 19, 1980, Johnson began working as a stock man at Belk-Lindsey. His job consisted primarily of pricing merchandise and loading trucks. On June 16, 1980 Johnson reached maximum medical improvement pursuant to an evaluation by another orthopedic surgeon, Dr. Peacock. Dr. Peacock's assigned maximum medical improvement date was premised upon Johnson's statement that he was satisfied with his hand the way it was and did not desire any other surgery or physical therapy. However, Johnson's hand remained slightly swollen and stiff, and prevented him from performing precision work such as writing for long periods. Accordingly, on August 7, 1980, he informed Dr. Peacock that he wished to resume therapy. On September 19, 1980, Johnson left his job at Belk-Lindsey to look for night work. He subsequently worked for a meat packing company as a laborer for four days but left because the cold temperatures in the freezer bothered his hand.

A hearing was held November 11, 1980, on Johnson's claim for temporary total and/or temporary partial disability, catastrophic loss, and other workers' compensation benefits. The Deputy Commissioner subsequently entered an order determining that Johnson was entitled to catastrophic loss benefits pursuant to Section 440.15(2)(b), Florida Statutes, and Van Eyk v. R.N. Hicks Construction Company, 377 So.2d 793 (Fla. 1st DCA 1979), between the date of the accident and his return to work on January 21, 1980. On appeal, the employer/carrier urges that Van Eyk is distinguishable and that Section 440.15(2)(b) is inapplicable to the type of injuries which occurred in this case.

The catastrophic loss provision, Section 440.15(2)(b), Florida Statutes (1979), in effect on the date of the accident, provides for increased temporary total disability benefits where an employee sustains "the loss of an arm, leg, hand, or foot, or total loss of use of such arm, leg, hand, or foot, or total loss of use of such member because of organic damage to the nervous system." By its very terms, the provision creates an ambiguity. An interpretation of this statute to include as a catastrophic injury the temporary and total loss of use of an arm, leg, hand, or foot would render superfluous the more specific clause requiring the total loss of use of such member because of organic damage to the nervous system. We do not construe the more general clause as extending the right to catastrophic loss benefits but rather, pursuant to established rules of statutory construction, we limit the right to such benefits to cases which meet the criteria of the more qualified language requiring, at least, the total loss of use of an arm, leg, hand, or foot because of organic damage to the nervous system. ¹

This construction makes applicable prior case law interpreting the catastrophic loss provision. In cases under the prior Act, ² a claimant who is totally unable to perform functions required in his employment due to organic damage to the nervous system is not required to prove amputation or equivalent loss of use in order to obtain catastrophic loss benefits. See, Van Eyk v R.N. Hicks Construction Company, supra; Santiago v. Orr Industries, Inc., 407 So.2d 1026 (Fla. 1st DCA 1981). Neither may such benefits be conditioned upon the necessity for physical therapy or participation in a rehabilitation program, Gardner v. D.F.S. Construction Company, 358 So.2d 171 (Fla.1978), although a primary purpose of the provision is to allow additional benefits during the period of adjustment via training in the use of artificial members or appliances and training or education under a rehabilitative program pursuant to Section 440.49, if provided. However, the catastrophic loss provision was never intended to apply to cases such as this, where the claimant sustains, without any organic damage to the nervous system, a short-term and temporary loss of use of one hand due to fractures of three fingers and various abrasions. No reported decision has allowed recovery for such injuries, and, indeed, to do so would result in the award of catastrophic loss benefits in the majority of temporary disability cases wherein any injury, regardless of the degree of severity or lack thereof, to one of the specified parts of the body renders it temporarily useless. Accordingly, the award of catastrophic loss benefits from the date of the accident through January 21, 1980 is reversed.

The employer/carrier also contends that the Deputy erred in awarding claimant temporary partial wage loss benefits at a flat weekly rate of $40 "continuing until such time as [the claimant] is no longer temporarily and partially disabled." Section 440.15(4)(a), Florida Statutes (1979), provides that such benefits "shall be based on actual wage loss" as "compared on a weekly basis." The flat prospective award here, even though it approximated Johnson's actual wage loss, was erroneous. The flat award was tantamount to an award...