Jackson v. Princeton Farms Corp.

• Citation: 140 So.2d 570
• Decision Date: 31 January 1962
• Docket Number: No. 31260,31260
• Court: United States State Supreme Court of Florida
• Parties: Walter JACKSON, Petitioner, v. PRINCETON FARMS CORPORATION, Hartford Accident & Indemnity Company, Florida Industrial Commission and Special Disability Fund, Respondents.

Page 570

140 So.2d 570

Walter JACKSON, Petitioner, v. PRINCETON FARMS CORPORATION, Hartford Accident & Indemnity Company, Florida Industrial Commission and Special Disability Fund, Respondents.

No. 31260.

Supreme Court of Florida.

Jan. 31, 1962.

Rehearing Denied Feb. 22, 1962.

Gerald Shapiro, Miami, for petitioner.

Lally, Miller & Hodges, Miami, Burnis T. Coleman and Robert B. Kane, Tallahassee, for respondents.

DREW, Justice.

Petitioner, a 62-year old illiterate Negro male by his petition for writ of certiorari contends the full commission erroneously reversed the order of the deputy commissioner which found the petitioner to have been permanently and totally disabled and which awarded the petitioner sixty per cent of the difference between his average weekly wage at the time total disability occurred and his actual earnings from subsequent employment. No appearance was made nor were briefs filed on behalf of the employer or carrier in the instant case. As respondents, they should have favored this Court with a brief of the law in accordance with Florida Appellate Rules ¹ even though an appearance could have been waived for purposes of oral argument since the attorney for the Special Disability Fund filed his brief and made an appearance before this Court.

There seems to have been no controversion of the factual conditions which form the basis for the instant case. Petitioner claimant had been working for the employer for about fifteen years off and on and had been a loyal, faithful and conscientious employee. Within that period claimant had lost his left arm but not in the course of or arising out of his employment. On July 10, 1957, petitioner met with an accident arising out of and in the course of his employment when a tractor which the petitioner was operating overturned and the employee's right leg was broken. Vascular gangrene set in and on July 24, 1957, petitioner-employee's right leg was amputated one-half way between his knee and his ankle (mid-third of the right tibia and fibula). The carrier paid temporary total disability benefits to November 26, 1957, the date agreed upon when petitioner reached maximum medical recovery at which time it commenced payment of benefits for permanent partial disability of the right foort. ² These benefits would have been paid for three years and nineteen weeks or until 1961.

Petitioner's stump of his left arm was too short for proper fitting of a prosthesis and, while he was fitted for a prosthesis on the stump of his right leg, he has developed callouses on the stump which cause pain if he spends too much time on such limb. In addition, petitioner has a mammoth hernia and needs surgical treatment for this and he has a defect in his vision. He has been rated as disabled by the Social Security Determination Team and has been found not subject to rehabilitation by the Division of Vocational Rehabilitation. The Florida State Employment Service has indicated petitioner cannot be placed in a job for gainful employment, but his employer has indicated he would rehire the petitioner to run a DC 2 Tractor Crawler. The employer indicated he would have some general reluctance for anyone else with but one arm and one leg to drive his tractor crawler but he would not object to petitioner doing so. Petitioner stated his stump hurt him to drive the tractor, that his hernia hurt him worse since the amputation, and that, in operating tractors, he was to drive next to water filled canals which cause him anxiety as he cannot swim nor with his limited extremities can he keep himself from falling.

Petitioner in fact did return to woek for the employer on or about December, 1957 after the loss of the foot and continued working until May of 1960 at a reduction in wages of $8.76 per week from what he had made previous to the accident. Petitioner left his employment due to the pain connected therewith. He then applied for compensation for permanent total disability.

The order of the deputy found that the claimant was permanently totally disabled as of November 26, 1957 but thereafter re-established a wage earning capacity and invoked the provisions of Section 440.15(5)(d)(2) Florida Statutes 1957, F.S.A. ³ by awarding the claimant compensation in the amount of $5.26 per week representing sixty per cent of the difference between his average weekly wage at the time of total disability and his subsequent wage earning capacity. The deputy also ordered the Special Disability Fund to reimburse the insurance carrier for all payments of compensation station in excess of 175 weeks.

The full commission in reversing the order of the deputy commissioner stated in part:

'In our opinion the finding of the deputy commissioner that claimant was permanently and totally disabled on November 26, 1957, is not supported by competent substantial evidence which accords with logic or reason within the meaning of the law. Let us look at the chronological events that transpired from the date of the accident, July 10, 1957. Claimant was furnished remedial treatment and an amputation was performed on his right leg between the ankle and the knee. Medical attention was furnished claimant until November 26, 1957, when the attending physician fitted claimant with a leg prosthesis, which the doctor felt to be adequate, although possibly requiring an adjustment from time to time. It must be remembered that the hearing before the deputy commissioner was held on October 25, approximately three years after the date the doctor found claimant to have reached maximum medical improvement, that is, on November 26, 1957. Yet the evidence is uncontradicted that claimant returned to work in about three weeks, that is, December 1957, following the date the prosthesis was furnished. It is also uncontradicted from the evidence that claimant continued to be employed for a period of almost two and one-half years with the employer, following which he 'walked off the job.' During this period of time, as found by the deputy, claimant had a 'wage earning capacity' and, as also found by the deputy, the claimant performed during this period of time, duties '* * * such as tractor driving and working around house, maintaining the employer's premises; picking up paper, and generally tidying up.' It is also noted and the deputy so found from the claimant's own testimony that at the time he left employment of the employer, he was running an irrigation pump. Activities of this nature and the fact that claimant had an earning capacity which was steady and uninterrupted for a period of two and one-half years belie a finding that claimant was permanently and totally disabled in a matter of some three weeks prior to the establishment of this wage earning capacity. Logic and reason dictate otherwise. The fact is that claimant from the date of his accident was in a period of 'healing' and during this period was totally disabled but only 'temporary' disabled. Thus, upon reaching maximum medical improvement, claimant was only permanently partially disabled as so fully demonstrated by the evidence adduced in the cause. The deputy's finding that the claimant was permanently totally disabled on November 26, 1957, is unwarranted in light of the evidence and the uncontradicted facts. Such a conclusion, that is, of permanent total disability, ility, on the aforesaid date, and it is merely a conclusion, has no basis in fact when it is admitted by all concerned that claimant worked for some two and one-half years doing odd jobs for the employer.

'It is our opinion that the insurance carrier was correct in paying the claimant compensation for permanent partial disability for 175 weeks for loss of use of the right foot.'

The two statutory provisions involved in the instant case are § 440.15(1)(b) ⁴ and § 440.15(5)(D)(2) , FLORIDA STATUTES 1957⁵, F.S.A. SECTION 440.15(1)(B)⁶ contains verbiage, the intent of which, was clearly recognized by the deputy commissioner when, as a part of his findings, he determined that the petitioner was within the confines of this section as a permanent total disability claimant. However, the deputy commissioner was equally accurate in analyzing the case as one which was governed by Section 440.15(5)(d)(2).

Before analyzing the latter section, the statutory construction given to this portion of the act by this Court is governed by the general mandate that the cardinal rule for statutory construction is that effect must be given to the intention of the Legislature. ⁷ But, as in this instance where the language of the statute is plain and unambiguous and conveys a clear and definite meaning, we need not resort to construction but need only emphasize and apply the facts of the instant case to the dictates contained therein. ⁸

Section 440.15(5)(d)(2) deals with claimants who have incurred a permanent partial disability through the loss of '* * * one arm * * * '. Petitioner had incurred such a loss, though non-compensable. The section then provides for compensation if such a claimant 'incurs permanent total disability through the loss of another member or organ * * *'. The moment the latter event transpires, a presumption of permanent total disability as defined by Section 440.15(1)(b) of the Act is in being. It is similar to the chemical combination of two elements each of which standing alone is inert, but upon synthesis an immediate and substantive change occurs giving rise to a third and entirely different condition. Under the statute the catalyst which brings about the immediate change is the '* * * loss of another member of organ * * *'.

On July 24, 1957, when the claimant had his leg amputated and thereby lost another member, there arose for the purpose of this section a presumption of permanent total disability. The error of the commission in reversing the deputy's finding of total disability lay in misapplication of the burden of proof. Upon the evidence the deputy was, in our opinion, fully warranted in...