Howard v. O'Neal

• Decision Date: 08 July 1964
• Docket Number: No. 33366,33366
• Citation: 166 So.2d 793
• Parties: Herman HOWARD, Petitioner, v. M. G. O'NEAL, d/b/a Concrete Batching Company, Great American Indemnity Co., Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 793

166 So.2d 793

Herman HOWARD, Petitioner, v. M. G. O'NEAL, d/b/a Concrete Batching Company, Great American Indemnity Co., Florida Industrial Commission, Respondents.

No. 33366.

Supreme Court of Florida.

July 8, 1964.

Rehearing Denied Sept. 10, 1964.

Allen Clements, Miami, for petitioner.

Wicker, Smith, Blomqvist, Hinckley & Davant and Harry G. Hinckley, Jr., Miami, for M. G. O'Neal, d/b/a Concrete Batching Co., and Great American Indemnity Co.; Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for Florida Industrial Commission, respondents.

ROBERTS, Justice.

Petitioner, Herman Howard, sustained a compensable injury to his back on March 3, 1955, while lifting a boom hoist from an automobile. Compensation for total disability was paid by the carrier for a period of sixty-two weeks and thereafter compensation was paid for a residual twenty percent permanent partial disability fo the body as a whole. On April 10, 1959, a claim for additional compensation and further remedial treatment was made. The parties stipulated that the carrier would pay claimant an additional ten percent permanent partial disability over the original twenty percent formerly agreed upon and thereafter the stipulation was approved by the deputy commissioner by order dated May 28, 1959. Two years later claimant filed a petition to modify this order pursuant to Florida Statutes Section 440.28, F.S.A., claiming a change in physical condition and a mistake in the determination of fact in that impairment of the claimant's wage earning capacity had proved greater than the percentage determined on the 28th of May, 1959. After a hearing before the commission which included the testimony of two medical doctors and the claimant the deputy found, inter alia, that claiment had undergone a second operation on this back 'because of the change in the condition of his back;' that claimant suffered a temporary total disability for the period of October 1, 1961 to December 15, 1961, for which he is entitled to compensation; and that due to his back and leg condition the claimant's wage earning capacity has been impaired by forty percent as a result of his permanent back injury. The employer and carrier applied to the full commission for review, urging that there was no competent substantial evidence to support a finding by the deputy commissioner that there has been a change in claimant's physical condition nor has there been a mastake in the determination of fact. The...