Escambia County Council on Aging v. Goldsmith

• Decision Date: 26 March 1985
• Docket Number: No. AY-460,AY-460
• Citation: 465 So.2d 655,10 Fla. L. Weekly 787
• Parties: 10 Fla. L. Weekly 787 ESCAMBIA COUNTY COUNCIL ON AGING and Auto-Owners Insurance Company, Appellants, v. Willie A. GOLDSMITH, Appellee.
• Court: Florida District Court of Appeals

Page 655

465 So.2d 655

10 Fla. L. Weekly 787

ESCAMBIA COUNTY COUNCIL ON AGING and Auto-Owners Insurance Company, Appellants, v. Willie A. GOLDSMITH, Appellee.

No. AY-460.

District Court of Appeal of Florida First District.

March 26, 1985.

L. Kathleen Horton-Brown of Clark, Partington, Hart, Hart & Johnson, Pensacola, for appellants.

Barry Silber of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellee.

MILLS, Judge.

The employer/carrier (E/C) appeal from a workers' compensation order awarding Goldsmith PTD benefits, contending the deputy erred in holding that PTD benefits are not subject to apportionment and erred in holding that apportionment requires a showing of disability resulting from pre-existing conditions rather than merely permanent impairment. We agree and reverse.

Goldsmith was injured on 16 September 1981. His doctor concluded that he sustained a 20% permanent impairment to his left leg, 1/2 to 3/4 being attributed to the natural progression of pre-existing conditions.

Goldsmith did not respond to the E/C's argument that PTD benefits are subject to apportionment. The E/C concede the record contains no evidence that Goldsmith was suffering from disability either at the time of the accident or at the time of the hearing.

Goldsmith's substantive rights are governed by Chapter 440, Florida Statutes (1981). We must construe Sections 440.02(18) and 440.15(5)(a), Florida Statutes (1981) to determine whether PTD benefits may be apportioned between a compensable injury and pre-existing conditions.

This issue appears to be one of first impression. Since both statutes deal with apportionment, they must be read in pari materia. State ex rel. McClure v. Sullivan, 43 So.2d 438 (Fla.1949). Construction should avoid conflict between the two, City of Indian Harbour Beach v. City of Melbourne, 265 So.2d 422 (Fla. 4th DCA 1972), and should find operations which preserve both. Woodley Lane, Inc. v. Nolen, 147 So.2d 569 (Fla. 2d DCA 1962).

Section 440.15(5)(a) states that:

The fact that an employee has suffered previous disability, impairment, anomaly, or disease, or received compensation therefor, shall not preclude him from benefits for a subsequent injury nor preclude benefits for death resulting therefrom. Compensation for temporary disability, medical benefits, and wage- loss benefits shall not be subject to apportionment. (e.s.)

As this court stated in University of Florida v. Karch, 393 So.2d 621 (Fla. 1st DCA 1981), the enumeration of several items upon which a statute either operates or forbids operation excludes from operation all things not expressly mentioned by it. Therefore, because the legislature did not include PTD benefits in the emphasized list, apportionment of those benefits is permissible.

Section 440.02(18) reads in pertinent part:

Where a pre-existing disease or anomaly is accelerated or aggravated by an accident arising out of and in the course of employment, only acceleration of death or acceleration or aggravation of the pre-existing condition reasonably attributable to the accident shall be compensable, with respect to death or permanent impairment. (e.s.)

Before 1979, acceleration or aggravation of "disability" was compensable with respect to "permanent disability." 1980 amendments stated that only acceleration or aggravation of the "pre-existing condition" is compensable with respect to "permanent impairment." Before these amendments, the courts construed Section 440.02(18) to require, before apportionment, that a pre-existing condition be causing "disability" either on the date of the accident or, because of natural progression, at the hearing. Evans v. Florida Industrial Commission, 196 So.2d 748 (Fla.1967). The differing language in the amended statute indicates a different meaning was intended. Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977).

The deputy equated 440.02(18)'s "permanent impairment" with "impairment benefits" under Section 440.15(3)(a), holding that it means that the Legislature intended to apportion impairment benefits where Section 440.15(3)(a) permanent impairment is found, that is, permanent impairment due to amputation, loss of 80% or more of vision of either eye or serious head or facial disfigurement. This construction would indicate that apportionment of PTD benefits is not authorized. But Section 440.15(5)(a) by statutory construction indicates they are.

"Permanent impairment" is defined in Section 440.02(21) as "any anatomic or functional abnormality or loss, existing after the date of MMI, which results from the injury." This is the definition intended when "permanent impairment" is used in Section 440.02(18). "Any anatomic or functional loss" would include permanent, total loss of wage earning capacity.

Further, "impairment benefits" under Section 440.15(3)(a) are benefits for limited types of permanent impairment. The legislature knew this difference yet used the broader "permanent impairment" in Section 440.02(18).

Reading Sections 440.02(18) and 440.15(5)(a) in pari materia, PTD benefits can be apportioned, and the deputy erred in holding that they could not.

Before 1979, Section 440.02(18) was construed to require that before a disability award could be apportioned, the pre-existing condition had to be causing disability either at the time of the accident or, because of natural progression, at the time of the hearing. Disability meant a loss of wage earning capacity rather than a permanent impairment as determined by a physician. Permanent impairment without disability was insufficient. Holloway v. Curcie Brothers, Inc., 203 So.2d 499 (Fla.1967).

The 1980 Legislature provided that only aggravation of the pre-existing condition is compensable with respect to impairment. This shows an intention by the Legislature that the basis for apportioning permanent benefits under the 1981 law is acceleration or aggravation of permanent impairment rather than acceleration or aggravation of disability. Therefore, the portion of the permanent impairment which would have existed without the accident must be apportioned out of the award.

While disability is determined by the deputy on a case by case basis, the determination of permanent impairment is made on the physician's ratings which are based on uniform...