City of Lakeland v. Catinella, 30869
| Decision Date | 28 April 1961 |
| Docket Number | No. 30869,30869 |
| Citation | 129 So.2d 133 |
| Parties | CITY OF LAKELAND, Florida, and Bituminous Casualty Corporation, Petitioners, v. Thomas CATINELLA, City of Lakeland, Florida, Hartford Accident and Indemnity Company, and Florida Industrial Commission, Respondents. |
| Court | Florida Supreme Court |
Rodney Durrance and Calvin A. Pope of Shackleford, Farrior, Stallings, Glos & Evans, Tampa, for petitioners.
Heskin A. Whittaker, Orlando, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.
The controversy involved herein is one between two workmen's compensation carriers, Bituminous Casualty Corporation and Hartford Accident & Indemnity Company. The rights of the claimant, Thomas Catinella, are in no way contested.
Claimant, an employee of the City of Lakeland, suffered a compensable injury on November 30, 1954. Bituminous was the carrier for the city at that time and furnished immediate medical attention. When claimant subsequently became disabled as a result of the injury, Bituminous commenced payment of permanent partial disability benefits. Claimant continued working for the city at lighter duties until March 11, 1957 when, as found by the deputy commissioner, claimant suffered a second compensable accident. Further medication and surgery were necessitated and claimant's permanent partial disability rating was increased 10%. Bituminous, which had ceased to be the city's carrier on a date prior to that of the second accident but had continued payment of all of claimant's benefits, supplied all medical and compensation benefits occasioned by the second accident without controverting any of such claims until July 23, 1959, as will be explained below.
The city's carrier on March 11, 1957 was the respondent, Hartford Accident and Indemnity Company. On July 23, 1959 the petitioner, Bituminous, with notice to Hartford, requested a hearing before the Industrial Commission 'to determine which carrier is responsible for the medical and other benefits subsequent to the March 1957 incident,' but voluntarily continued payment of compensation benefits to claimant.
At the hearing the petitioner, Bituminous, took the position it was responsible for no part of the medical and compensation benefits due to the claimant subsequent to the accident of March 11, 1957.
Hartford, the respondent, raised several legal questions. First, it questioned the jurisdiction of the Industrial Commission over the dispute. Other questions were raised, including the contention that the episode of March 11, 1957 did not in fact constitute a second accident and that claimant's present condition was merely the natural result of his degenerative disease, arachnoiditis, caused by the injury in 1954.
The deputy ruled against the respondent, Hartford, on all points. He found there had been a second accident which materially aggravated claimant's pre-existing condition, related to the first accident. He then ordered the petitioner Bituminous and the respondent Hartford to share equally in the payment of future medical and compensation benefits (which promise to be considerable) from and after July 23, 1959, the date Bituminous gave notice to Hartford.
Hartford applied to the Full Commission for review, raising again the points urged before the deputy. The petitioner Bituminous filed cross-application for review, arguing that it had no responsibility for medical and compensation benefits subsequent to March 11, 1957, or, in the alternative, the deputy should have ordered Hartford to share equally from and after March 11, 1957, the date of the second accident, rather than merely from July 23, 1959, the date of notice.
The Full Commission affirmed the deputy, finding his order supported by competent substantial evidence according with logic and reason.
From the order of the Full Commission only the petitioner, Bituminous, petitioned this Court for review.
Since Hartford sought no review it is not entitled to consideration by this Court of all questions raised by it before the deputy and the Full Commission. Nevertheless, the question of whether there was in fact a second accident on March 11, 1957 is inherent in Bituminous' petition on this review and was actually made a point in Bituminous' brief in support of its petition for writ of certiorari.
A review of the record before us reveals competent substantial evidence according with logic and reason to support the finding that there was a second accident. Therefore, we conclude that the order of the deputy and the Full Commission is affirmed as to this point.
While Hartford did not file a petition for review, at oral argument it again argued that the Industrial Commission had no jurisdiction over this controversy between the two carriers. Under F.A.R. 3.7, subd. i, 31 F.S.A., this Court may notice jurisdictional error, if there be such, whether or not it has been made the subject of an assignment of error. Accordingly, this Court, feeling the question to be substantial, has given it due consideration.
In his order the deputy noted that Hartford contended that authority for the procedure followed by Bituminous was F.S. § 440.42, F.S.A., prior to amendment in 1957, but the deputy was of the opinion the controlling statute was Sec. 440.20(8), F.S.A. The deputy found the language of that section to clearly provide jurisdiction of the commission to hold such hearings necessary to protect the parties, stating that both carriers were proper parties to the hearing. The deputy set out in his order what he considered to be the controlling provisions of the statute, adding emphasis as follows:
'The commission (a) may upon its own initiative at any time in a case in which payments are being made without an award * * * make such investigation, cause or hold such hearings, and take such further action as it considers will properly protect the rights of the parties.'
We cannot agree with the deputy. We are of the opinion he failed to consider the controlling provisions of that statute, as further evidenced by his omission thereof in his quotation of the section, above. The statute, in toto, is as follows:
'(8) The commission (a) may upon its own initiative at any time in a case in which payments are being made without an award, and (b) shall in any case where right to compensation is controverted, or where payments of compensation have been stopped or suspended, upon receipt of notice from any person entitled to compensation, or from...
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