Dennis v. Brown

• Decision Date: 13 March 1957
• Citation: 93 So.2d 584
• Parties: W. C. DENNIS, d/b/a Allapattah Home & Auto Supply, and National Surety Corporation, Petitioners, v. U. L. BROWN, Florida Industrial Commission, and Liberty Mutual Insurance Company, Respondents.
• Court: Florida Supreme Court

Page 584

93 So.2d 584

W. C. DENNIS, d/b/a Allapattah Home & Auto Supply, and National Surety Corporation, Petitioners, v. U. L. BROWN, Florida Industrial Commission, and Liberty Mutual Insurance Company, Respondents.

Supreme Court of Florida, Special Division B.

March 13, 1957.

Frank A. Howard, Jr., and Dixon, DeJarnette, Bradford & Williams, Miami, for petitioners.

Cosgrove & Rose, Miami, for U. L. Brown, Blackwell, Walker & Gray, Miami, for Liberty Mutual Ins. Co., and Rodney Durrance, Tallahassee, for Florida Industrial Commission, respondents.

O'CONNELL, Justice.

Dennis, the employer, and his carrier petition this Court for writ of certiorari to review a compensation order of the Florida Industrial Commission. The Commission's order affirmed the order of a deputy commissioner awarding payment of compensation to the respondent, U. L. Brown, for temporary total disability.

In 1949, Brown, the respondent claimant, was seriously injured in the course of his employment with petitioner Dennis. Because of those injuries, claimant was adjudicated totally and permanently disabled and Dennis, through his carrier at that time, paid claimant the maximum benefits then recoverable under the Workmen's Compensation Act, F.S.A. § 440.01 et seq. Medical treatment was continued to be furnished claimant by his employer and the carrier.

In February of 1954, claimant again became employed by the same employer, Dennis. It was necessary for him to wear a brace and use a cane. He could not work outside of the store, as he had done previously as a salesman. He could work only a part of each day. Nevertheless, according to his employer, he was earning the pay he received. On September 30, 1955, claimant fell on a freshly waxed floor and reinjured his back. Dennis' new carrier, National Surety Corp., furnished medical treatment but controverted claim for compensation. The carrier contended claimant had already been compensated by the same employer for permanent total disability and that therefore no further benefits were payable.

The deputy commissioner found the claimant had regained a certain wage earning capacity and was entitled to compensation for temporary total disability due to the second injury, in spite of the previous award of maximum benefits under the Act. Dennis and his carrier applied for review to the full commission. The order of the deputy was affirmed by the full commission, whereupon this petition for writ of certiorari was filed.

Petitioners maintain that claimant was given employment and that he received his earnings out of the generosity, helpfulness and sympathy of his employer and patronizing friends. They say he could not and did not sustain any loss of earning capacity due to the second accident, because at the time thereof he had no earning capacity. Yet they do admit the claimant was selling enough merchandise to earn his salary.

The deputy commissioner found claimant's situation created an enigma. He felt the answer was sought in the 1955 amendment to our Workmen's Compensation Law [which appears now as Section 440.15(5), Subsequent Injury; Special Disability Fund] but that a full answer did not result, He cited in support of his conclusion one case which he felt in point to the instant claim. In that case the claimant had received a 100 per cent permanent disability rating, but the California court allowed compensation for a subsequent accident, upon its interpretation of that state's subsequent injuries legislation. Smith v. Industrial Accident Comm., 1955, 44 Cal.2d 364, 282 P.2d 64. The court stated, 282 P.2d on page 68:

'If an employe may properly be rated at 100 per cent disability to qualify him for the basic form of workmen's compensation, even though his earning power has not in truth, for practical purposes, been impaired, it should be at least equally permissible to penetrate the fiction of 100 per cent disability and accept the truth of his remaining earning ability so that the further truth of a subsequent injury with increased actual disability may be compensated from the fund set up for that purpose.'

However, in California a showing of loss of earning power is not a prerequisite to compensation for permanent disability. This fact is stated in the Smith case, supra, and its truth is readily ascertained from referring to the quoted portion set out above. Compensation is based on the physical injury rather than actual loss of earning power, in that state, and therefore we should not rely too heavily on that case in support of the commission's finding. It is settled in this state that the disability is determined not by the functional loss, but by the loss of wage earning ability. Ball v. Mann, Fla.1954, 75 So.2d 758. However, even in our state we have a schedule of certain injuries which automatically constitute permanent total disability, irrespective of loss in earning power. Section 440.15(1)(b).

Petitioners cite several cases in other jurisdictions which hold that a man cannot be more than totally disabled. O'Brien v. Albert A. Albrecht Co., 1919, 206 Mich. 101, 172 N.W. 601, 6 A.L.R. 1257; Van Tassel v. Basic Refactories Corp., 1926, 216 App.Div. 774, 214 N.Y.S. 491; Harrington v. Department of Labor and Industries, 1941, 9 Wash.2d 1, 113 P.2d 518.

In the Harrington case, the rule of the Van Tassel case is cited. The court, in the Harrington case, said that the mere fact that a workman may recover from an injury which has been classified as a permanent total disability for which he has been fully compensated does not negate the fact he has already received all the benefits allowed for permanent total disability. This statement was made immediately after a statement by the court that the theory upon which compensation is allowed is that the workman has sustained a loss of earning power. An opposite holding was cited by the court in the case of Asplund Const. Co. v. State Industrial Comm., 1939, 185 Okl. 171, 90 P.2d 642, but the Washington court felt a statutory distinction brought such about. It quoted [9 Wash.2d 1, 113 P.2d 520] the applicable Washington statute as providing 'should a further accident occur to a workman who has been previously the recipient of a lump sum payment under this act, his future compensation shall be adjudged according to the other provisions of this section and with regard to the combined effect of his injuries and his past receipt of money under this act.' Rem.Rev.Stat. § 7679(g). The applicable statute in Oklahoma was quoted as providing 'the fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury; but in determining compensation for the later injury his average weekly wages shall be such sum as will reasonably represent his earning capacity at the time of the later injury.' 85 O.S.1951 § 22, subd. 6. The Washington court pointed out that the Oklahoma statute made no distinction as to degrees of disability to which it applied and made no exception of permanent total disability. Because its statute contained language substantially different, the Washington court refused to consider the Asplund case as authority on the question.

It will be noted that the statute in Oklahoma referred to above is quite similar to the language used in our own Workmen's Compensation Act. See Sec. 440.15(5)(c).

The Asplund case was decided in 1939. The question before the court was whether a claimant who had on one date received an injury for which he had been awarded compensation for permanent and total disability could thereafter receive an award for temporary total disability for a second injury. The second injury occurred some sixteen years after the first, while claimant was working for a second employer. For eight years previous to the second injury he had been working at various mechanical and manual labor jobs. The court found the question to be one of first impression and adopted its holding upon its construction of that state's workmen's...