Hernandez v. De Carlo
| Decision Date | 16 December 1959 |
| Citation | 116 So.2d 429 |
| Parties | John HERNANDEZ, Petitioner, v. James V. DE CARLO and Florida Industrial Commission, Respondents. |
| Court | Florida Supreme Court |
Tobin, Rubin & Salmon, Truett & Watkins and Steve M. Watkins, Tallahassee, for petitioner.
Fowler, White, Gillen, Humkey & Treman, Miami, for respondent James V. DeCarlo and Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondent Florida Industrial Commission.
Petitioner Hernandez, an employee, seeks review of an order of the respondent commission which reversed an order of a deputy commissioner awarding workmen's compensation benefits to him.
The point to be determined is whether there is competent substantial evidence to sustain the conclusion of the deputy commissioner that the petitioner had sustained an injury to the body as a whole, as distinguished from a scheduled injury under the Workmen's Compensation Act.
Hernandez, a plasterer, was an employee of the respondent DeCarlo. As the result of a fall in the course of his employment Hernandez was injured. Three doctors testified and the deputy commissioner found that the petitioner had suffered injuries to the hand, wrist, and shoulder. The problem, as we shall see, requires a determination whether the injury was to the left arm and, therefore, compensable under the fixed schedule, or whether it was an unscheduled injury which resulted in disability of the body as a whole. This necessitates a consideration of the injury to the shoulder. The treating physician diagnose this injury as a rupture of the 'should cuff'. He performed a surgical repair of the torn ligaments in this area. As accurately as we are able to determine from a careful study of the record, the 'shoulder cuff' is a part of the outer side of the shoulder. One doctor stated that 'it is sort of a ligament which is attached to the bone.' Another doctor stated that 'the shoulder cuff joins the body with the shoulder and all of the muscles attached to this cuff coming from the body.' Three doctors testified. One had the view that the petitioner had suffered a 35% disability of the left upper extremity and a 5% disability of the body as a whole. Another physician had the view that the petitioner had suffered a 15% permanent partial disability of the left arm. A third doctor had the view that petitioner had suffered a 20% disability of the left upper extremity. By applying certain tables prepared by the American Medical Association, this third physician stated that the 20% disability of the left upper extremity produced a 12% functional disability of the body as a whole. The deputy also heard the testimony of the employer DeCarlo, and the petitioner himself. The deputy found that the petitioner had been injured in his hand, wrist and shoulder. He held that Hernandez had suffered a 12% functional disability of the body as a whole, but a 31% loss of earning capacity. The deputy entered an order to this effect and directed payment of compensation on the basis of his finding of the loss of earning capacity. The full commission reversed the deputy and in so doing authorized him to employ an impartial orthopedist to examine the petitioner if the latter so desired. Otherwise, the deputy was directed to enter on order allowing compensation to the extent of the functional loss of use of the left arm. Review of this order is now sought.
The petitioner employee contends that there was competent substantial evidence to support the finding of the deputy to the effect that he had suffered a disablement of the body as a whole and was, therefore, entitled to benefits based on loss of earning capacity.
The respondents contend that there is a total absence of competent substantial evidence to support a finding of disability to the body as a whole. In this regard it is contended that the respondent commission correctly found that the petitioner should be limited to benefits for percentage of disability to this left arm under the scheduled injury section of the Workmen's Compensation Act. Ch. 440, Fla.Stat., F.S.A.
The difference in the results produced by the contentions of the respective parties is clear in view of our decision in Ball v. Mann, Fla.1954, 75 So.2d 758. By the cited decision this Court committed itself to the view that when an employee suffers an injury not scheduled under Section 440.15(3), Florida Statutes, F.S.A., but rather suffers an unscheduled injury under Section 440.15(3)(u), Florida Statutes, F.S.A., he is entitled to have considered his loss of earning capacity when the unscheduled functional disability is evaluated along with such variables as his age,...
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