Evans v. Florida Indus. Commission
| Citation | 196 So.2d 748 |
| Decision Date | 01 February 1967 |
| Docket Number | No. 34535,34535 |
| Parties | Willie J. EVANS, Petitioner, v. FLORIDA INDUSTRIAL COMMISSION, Davis Grove Service and Southern Farm Bureau Casualty Insurance Company, Respondents. |
| Court | United States State Supreme Court of Florida |
Edward H. Hurt and Monroe E. McDonald of Sanders, McEwan, Schwarz & Mims, Orlando, for petitioner.
Charles M. McCarty, Orlando, Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for respondents.
We have for review an order of the Florida Industrial Commission reversing and remanding for further proceedings a compensation order awarding permanent total disability benefits, costs, and attorney's fees.
In April, 1961, petitioner, then a forty-six year old illiterate grove worker, injured his back while in the course of his employment with the respondent. After conservative treatment, he was discharged to return to work with no residual disability. About one year later, on June 2, 1962, while in the same employment, petitioner reinjured his back in a compensable accident. After treatment, including surgery, it was determined that he had reached maximum medical improvement with a permanent disability rating of 25 percent of the body as a whole. A claim was filed within the limitation period of both accidents.
At the hearing, the attending doctor testified that claimant was anatomically aged, meaning that he was physically older than his chronological age, and that this degenerative condition had pre-existed both accidents and made claimant more susceptible to back injury.
The deputy found, on the basis of such variables as the claimant's physical condition, work history, education, attitude, and ability to obtain the kind of work that he was able to do, that claimant was totally and permanently disabled and awarded benefits accordingly. He further found that certain medical reports, submitted at the time of the first accident and thereafter, constituted notice to the employer of claimant's pre-existing condition. He therefore held that under the rule of Dorsey v. L & A Contracting Co., Fla.1963, 155 So.2d 357, there should be no apportionment of the benefits under Sec. 440.02(19).
The full commission reversed, holding (1) that there was not competent substantial evidence to support the deputy's finding of total permanent disability; (2) that Sec. 440.02(19) required apportionment of the benefits under the authority of Victor Wine & Liquor, Inc. v. Beasley, infra; and (3) that there was not competent substantial evidence to support the deputy's finding that the employer had knowledge of any pre-existing condition. Petitioner challenges only the first two of these holdings.
In holding that there was not sufficient competent substantial evidence to support the finding of permanent total disability, the commission simply substituted its view of the evidence for that of the deputy. The record does support a finding that this illiterate claimant was unable to perform the physical activity required in the only kind of work he is qualified to do.
In its order of reversal, the commission stated, 'It is clear an award should be apportioned where there is a pre-existing condition.' It then recited that the evidence showed that claimant had a pre-existing diseased condition and that the accidents involved only accelerated or aggravated the pre-existing condition. On this basis the commission held that an apportionment should be made under the provisions of Sec. 440.02(19).
At the time of petitioner's accidents, Sec. 440.02(19) read as follows:
We note here that the section was amended by the 1965 Legislature, but not in any way material to this discussion. Therefore, to the extent applicable this opinion will also apply to the statute as it now exists.
A number of the more recent decisions of this court support the holding of the commission that an award should be apportioned when there is a pre-existing diseased condition. United Electric Co. v. Myers, Fla.1961, 134 So.2d 7; Jacquette Motor Co. v. Talley, Fla.1961, 134 So.2d 238; Victor Wine & Liquor, Inc. v. Beasley, Fla.1961, 141 So.2d 581; Henderson v. Sol Walker & Co., Fla.1962, 138 So.2d 323; Le Forgeais v. Erwin-Newman Co., Fla.1962, 139 . so.2d 401; Hampton v. Owens-Illinois Glass Co., Fla.1962, 140 So.2d 868; Wilkes v. Oscar's Transfer & Storage, Fla.1964, 164 So.2d 810; and Shores Development, Inc. v. Carver, Fla.1964, 164 So.2d 803. The holdings in two earlier decisions also appear to support the commission's conclusion. Padrick Chevrolet Co. v. Crosby, Fla.1964, 75 So.2d 762 and Czepial v. Krohne Roofing Co., Fla.1957, 93 So.2d 84.
However, there are many earlier decisions of this court which hold or contain statements to the effect that a pre-existing diseased condition does not necessarily require apportionment. Allen v. Maxwell Co., 1943, 152 Fla. 340, 11 So.2d 572; Protectu Awning Shutter Co. v. Cline, 1944, 154 Fla. 30, 16 So.2d 342; Davis v Artley Const. Co., 1944, 154 Fla. 481, 18 So.2d 255; Cleary Bros. Const. Co. v. Nobles, 1945, 156 Fla. 408, 23 So.2d 525; Borden's Dairy v. Zanders, Fla.1949, 42 So.2d 539; Andrews v. C.B.S. Division, Maule Industries, Fla.1960, 118 So.2d 206; Standard Oil Co. v. Gay, Fla.1960, 118 So.2d 212.
The broad difference between our earlier and later opinions involving apportionment under Sec. 440.02(19), as well as the interpretation given the section by the commission in this case, has convinced as that we should re-examine the statute and its application.
Section 440.02(19), as well as the other apportionment provisions, Sec. 440.15(5)(c), is a limitation on the operation of the universally accepted maxim that the employer takes the employee as he finds him. In our earlier opinions we have adopted and relied on that maxim and have never expressly repudiated it. In particular see Allen v. Maxwell Co., supra, and Davis v. Artley Const. Co., supra. Since this maxim is a part of the basic philosophy of our workmen's compensation act, it follows that the apportionment provisions should be construed so as to minimize their inconsistency with it.
The obvious purpose of the apportionment provision of Sec. 440.02(19) is to relieve the employer of the obligation for that portion of his disability which is not the result of an industrial accident, but which is in some way attributable to a pre-existing disease or condition. As indicated by the difference in our earlier and more recent decisions, there is considerable confusion as to just what it is that should be apportioned out of an award in such a case. We shall attempt to resolve this confusion in this opinion.
It is worth noting initially that in most states 'no attempt is made to weigh the relative contribution of the accident and the pre-existing condition to the final disability.' Larson's Workmen's Compensation Law, p. 56. Larson lists only California, Kentucky, Mississippi and North Dakota as having comparable statutory provisions.
Specifically, we are concerned here with the sentence in Sec. 440.02(19) F.S.1961, F.S.A. which reads 'Where a pre-existing disease is accelerated or aggravated by accident arising out of and in the course of employment, only acceleration of death or the acceleration or aggravation of disability reasonably attributable to the accident shall be compensable.' Moreover, we are concerned with the application of this provision to an award of disability benefits, not of death benefits.
After thorough study of the statute and all prior cases turning on its application, we are now convinced that the subject provision requires that there be apportioned out of an award in such a case only that portion of the disability which resulted from the normal progress of the pre-existing disease as of the time the award is made. Conversely, it requires that all the resulting disability that is not attributable to the normal progress of a pre-existing disease should be compensated.
The case of Tannenbaum v. Industrial Acc. Comm., 1935, 4 Cal.2d 615, 52 P.2d 215, a much-cited California case, illustrates well the effect which we think the legislature intended and that which logic requires be given to that part of the statute involved here. Although the California statute construed in Tannenbaum was worded differently than ours it was obviously intended to accomplish the same purpose.
In Tannenbaum, the claimant was found to have a permanent partial disability of 32 3/4% Due to a shoulder injury. Then, on motion of the carrier the commission found the disability was due in part to the injury and in part to the normal progress of a pre-existing arthritic condition. In approving the apportionment the Supreme Court of California said:
'It is now definitely settled that the acceleration, aggravation, or 'lighting up' of a pre-existing disease is an injury in the occupation causing the same. * * * The underlying theory is that the employer takes the employee subject to his condition when he enters the employment, and that therefore compensation is not to be denied merely because the workman's physical condition was such as to cause him to suffer a disability from an injury which ordinarily, given a stronger and healthier constitution, would have caused little or no inconvenience. In such cases full...
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