J. J. Murphy & Son, Inc. v. Gibbs, 31284

• Decision Date: 07 February 1962
• Docket Number: No. 31284,31284
• Citation: 137 So.2d 553
• Parties: J. J. MURPHY & SON, INC., (The Printcrafters), Petitioner, v. Marguerite GIBBS and The Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 553

137 So.2d 553

J. J. MURPHY & SON, INC., (The Printcrafters), Petitioner, v. Marguerite GIBBS and The Florida Industrial Commission, Respondents.

No. 31284.

Supreme Court of Florida.

Feb. 7, 1962.

Berson, Barnes & Inman and Jack C. Inman, Orlando, for petitioner.

Welsh, Cornell, Pyszka & Carlton, Charles T. Kessler, Miami, Paul E. Speh and Burnis T. Coleman, Tallahassee, for respondents.

O'CONNELL, Judge.

The respondent-claimant, Marguerite Gibbs, was an employee of the petitioner, J. J. Murphy, Inc. (The Printcrafters). She received a compensable injury while so employed and the petitioner provided suitable medical care and for a period of eight weeks paid her compensation for temporary total disability. Thereafter she filed claim for additional or increased benefits. The deputy commissioner entered an award in her favor and the Full Commission, upon review, affirmed such award, although it reduced the attorney's fees. The petitioner-employer seeks review of this order of the Full Commission.

Claimant had worked for the petitioner some ten years. During the school year she worked for petitioner in the afternoons and early evenings and in the mornings and early afternoons she was employed by the Dade County School Board. During the summer months when school was not in session she worked full time for the petitioner.

In her employment with the school board she worked in the school cafeteria, preparing salads and operating a cash register, an electric meat slicer, and a food chopping machine. For this work she received an average weekly wage of $50.00.

In her employment with the petitioner, for which she received an average weekly wage of $20.00, claimant operated a machine which bound together invoice forms with carbons inserted.

On November 11, 1959 while operating the machine for the petitioner, respondent was injured when the head of the machine came down on her right arm and hand.

Petitioner provided the necessary medical care. It compensated her for temporary total disability for the eight week period running from the date of the accident until January 4, 1960, on which date respondent returned to her employment with the school board but not with the petitioner. This compensation, $12.00 per week, was based upon the average weekly wage paid to her by the petitioner in sum of $20.00 per week.

Thereafter on March 21, 1960 respondent made claim for an increase in compensation based upon the contention her average weekly wage was not $20.00 but was $70.00, that is, $20.00 plus $50.00. She also sought compensation for temporary and permanent partial disability.

At the hearing held on these claims there was presented to the deputy only the testimony of the claimant and a report of an examining physician, Dr. Van M. Browne.

The doctor's report, in the form of a letter, was dated May 21, 1960. In it he said he had examined the claimant on May 20, 1960 and found that because of the injury she had a permanent disability of 45% of the right thumb. He noted therein that 'this lady has had no treatment since March 24th,' (1960) and he commented that in his opinion she would never be able to return to her former occupation with the petitioner, although she was able to work in the school cafeteria

The deputy questioned claimant as to her disability and had her demonstrate to him the functional limitations such disability imposed upon her.

In his order the deputy stated that claimant was employed by the petitioner and was also employed 'in a related employment' at the school cafeteria. He ruled that based upon the commission's decision in Barnes v. White's Superette, Decision No. 2-909 (certiorari denied without opinion, White's Superette v. Barnes, Fla.1961, 125 So.2d 875) her average weekly wage of $50.00 with the school board should be combined with the $20.00 average weekly wage with petitioner, giving her a total average weekly wage of $70.00. Accordingly, he ordered that for the eight weeks of temporary total disability claimant was entitled to receive compensation based on a $70.00 rather than a $20.00 average weekly wage. He ordered the petitioner to make such adjustment.

Next, after ruling the claimant was liable for the payment of attorney's fees, the deputy stated:

'By the authority of Magic City Bottling [Bottle] & Supply v. Robinson, Fla., 116 So.2d 240, the undersigned Deputy Commissioner, after carefully observing the claimant's use of her hand and arm, and after questioning her at length, is convinced that this compensable injury has affected the use of her entire hand and therefore finds that she has sustained a permanent loss of use of her hand to the extent of one-third.'

He ordered payment of compensation for such permanent partial disability on the basis of a $70.00 average weekly wage.

The claimant also sought temporary partial disability benefits from January 4, 1960 (the date she returned to work with the school board) until May 20, 1960. The deputy found that she was temporarily partially disabled from January 4, 1960 'until she reached maximum medical improvement May 20, 1960, in accordance with the opinion of Dr. Van M. Browne.' He ordered petitioner to pay claimant compensation for temporary partial disability for 20 weeks in the amount of $20.00 per week.

On review the Full Commission affirmed the deputy's combining the claimant's two average weekly wages so as to reach an average weekly wage of $70.00, approved the award for one-third loss of use of the right hand rather than mere loss of use of the right thumb, and ordered a reduction in amount of attorneys' fees awarded by the deputy. However, the commission made no determination in its order as to the correctness of the award of compensation for temporary partial disability although the order states that such award was one of the four questions raised by petitioner on the review before it

The petition now before us raises three points: (1) whether the wages from claimant's two employments should have been combined; (2) whether the deputy erred in awarding permanent disability benefits for partial loss of use of the hand rather than the thumb; and (3) whether the deputy erred in making the award of temporary partial disability.

We will treat these questions in inverse order.

Awards for temporary partial disability are governed by Sec. 440.15(4) F.S.A. which reads:

'In case of temporary partial disability resulting in decrease of earning capacity the compensation shall be sixty per cent of the difference between the injured employee's average weekly wages before the injury and his wage-earning capacity after the injury in the same or other employment, to be paid during the continuance of such disability, but shall not be paid for a period exceeding five years.' (Emphasis added)

It is clear that the yardstick by which the amount of compensation for such disability must be measured is the difference between the pre-injury average weekly wages of a claimant and his wage earning capacity after the injury reduced to 60%.

In this case the deputy made no finding as to the claimant's 'wage-earning capacity after the injury.' The only evidence from which he could have logically inferred such a loss was the fact that prior to the injury claimant earned a total of $70.00 a week and that after she returned to work following the injury she earned only $50.00 a week.

Assuming that this difference in wages earned is sufficient basis for determining loss of wage earning capacity and is proportionate to the loss of such capacity then it would seem that the award should have been 60% of $20.00 or $12.00 per week rather than $20.00 per week as ordered by the deputy. In order to arrive at a figure of $20.00 per week for such award the deputy would have to have found that the loss of wage earning capacity amounted to about $35.00 per week in dollars or roughly a 50% loss of such capacity as measured by her total pre-injury earning of $70.00 per week.

More basic than the above, however, is the fact that there is no evidence whatsoever in the record before us, either in the report of Doctor Browne or in the claimant's testimony, to support a finding that the claimant was temporarily partially disabled from January 4, 1960, the date she returned to work at the school cafeteria, to May 20, 1960, the date Dr. Browne examined her and rated her as having a 45% permanent disability of the thumb. In his report Dr. Browne stated that claimant had received no treatment for her injury since March 24, 1960. There is no evidence as to when the claimant reached maximum medical improvement, or any that indicates she has reached such point.

It is entirely possible that one who is temporarily totally disabled may improve to the point that the total disability becomes only partial and that such partial disability may endure for a period of time before it can be said that there is disability which is permanent. However, in this case the record simply does not show the facts upon which it can be said whether temporary partial disability followed temporary total disability or whether such total disability was followed immediately by permanent partial disability.

The record clearly reflects that temporary total disability ceased on January 4, 1960 when claimant returned to work at the school. It does not reflect that she suffered temporary partial disability following that date.

This cause will have to be remanded to the deputy for the taking of evidence which will show whether the claimant suffered any temporary partial disability following January 4, 1960 and if so, when it terminated, i. e. when claimant reached maximum medical improvement. He will also have to make findings as to the extent of the loss of wage earning capacity occasioned by any such temporary partial disability.

The next question is whether the deputy erred in finding that claimant suffered a permanent disability amounting to a one-third loss of use of the hand...