Holloway v. Curcie Bros., Inc., 35976
Decision Date | 07 June 1967 |
Docket Number | No. 35976,35976 |
Parties | Richard S. HOLLOWAY, Petitioner, v. CURCIE BROTHERS, INC., and the Florida Industrial Commission, Respondents. |
Court | Florida Supreme Court |
Patterson & Maloney, Fort Lauderdale, for petitioner.
Rose & Marlow, Miami, Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for respondents.
By petition for a writ of certiorari we have for review an order of the Florida Industrial Commission bearing date October 24, 1966.
After oral argument and upon consideration of the petition, the record and briefs, we conclude that there has been no deviation from the essential requirements of law.
The petition is therefore denied. The motion for attorney's fees filed by Petitioner Holloway is denied.
It is so ordered.
THORNAL, C.J., dissents on authority of Evans v. Florida Industrial Commission, Fla., 196 So.2d 748.
After oral argument we denied the petition for writ of certiorari, concluding there had been no deviation from the essential requirements of law. However, upon consideration of the petition for rehearing filed by Petitioner (claimant), we find that we failed to apply our recent decision of Evans v. Florida Industrial Commission, 196 So.2d 748, with respect to the matter of an apportionment in this case.
The following appears from the Deputy Commissioner's order which was approved by the Commission:
'Dr. Rahilly testified that Claimant has an overall disability of 24%, one-half of which is due to a pre-existing arthritic condition.
* * *
* * *
* * *'
It appears that the claimant's osteoarthritis pre-existed his accident; however, there is no evidence that such pre-existing condition was in any way disabling to the claimant in his employment as a truck driver at the time of the accident. Nor was there evidence of the disabling effect of the pre-existing disease through its normal progress at the time permanent disability was determined. Dr. Rahilly, an orthopedic surgeon, in testifying put it this way:
'I would say that this man probably had a pre-existing silent osteoarthritis in his neck, according to the history he gave me, which became symptomatic as a result of this accident. * * *'
He testified further:
Finally, in answer to a question as to whether claimant had extensive osteoarthritic changes, Dr. Rahilly testified
The finding of Dr. Rahilly was agreed to by Dr. Fixel, also an orthopedic surgeon, who testified claimant's pre-existing osteoarthritic...
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Lane v. Pipeline Const. Co., 38340
...Company (Fla.1968), 212 So.2d 289; Crotts v. Montgomery Ward and Company (Fla.1968), 208 So.2d 97, and Holloway v. Curcie Brothers, Inc. (Fla.1967), 203 So.2d 499. It is quite apparent from this record that Lane's injury falls into a category resulting solely from the accident or from accel......
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Escambia County Council on Aging v. Goldsmith
...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 impair......
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Escambia County Council on Aging v. Goldsmith
...impairment was not contributing to Goldsmith's permanent total disability so as to form a basis for apportionment. Holloway v. Curcie Brothers, Inc., 203 So. 2d 499 (Fla.1967). Unlike the Holloway case, however, the employer and carrier in this case had ample "opportunity for a showing of p......
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Luttrell v. Roger Holler Chevrolet
...disability at the time the award is made, it is improper to apportion out of the award a preexisting condition. See Holloway v. Curcie Bros., Inc., 203 So.2d 499 (Fla.1967); Barile Excavation & Pipeline Sewer Improvement v. Hough, 417 So.2d 843 (Fla. 1st DCA 1982); Sarasota County v. Reiche......