Maldonado v. Keller Metal Products, 34624

• Decision Date: 27 April 1966
• Docket Number: No. 34624,34624
• Citation: 185 So.2d 702
• Parties: Juan MALDONADO, Petitioner, v. KELLER METAL PRODUCTS, United States Fidelity & Guaranty Company and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 702

185 So.2d 702

Juan MALDONADO, Petitioner, v. KELLER METAL PRODUCTS, United States Fidelity & Guaranty Company and Florida Industrial Commission, Respondents.

No. 34624.

Supreme Court of Florida.

April 27, 1966.

Edward Schroll, Miami, for petitioner.

Summers Warden, Miami, Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for respondents.

ERVIN, Justice.

Juan Maldonado, the petitioner herein and claimant below, while in the course of his employment suffered a compensable injury to his back which resulted in an award by a deputy commissioner of the Florida Industrial Commission entered on October 3, 1963. Subsequently, the claimant filed a petition for modification based upon a change of condition or a mistake in determination of fact. On October 20, 1964 the deputy upon consideration of the evidence presented granted the petition and allowed the claimant further medical treatment and awarded him temporary total disability from June 15, 1964 and thereafter until such time as claimant should reach maximum medical improvement as a result of a spinal fusion. On appeal by the employer and carrier, the full Commission entered an order reversing the deputy and dismissing the claim. It was the opinion of the full Commission that the claimant failed to show that there had been a mistake in a determination of fact or a change in condition.

By petition for certiorari the claimant seeks to have us quash the order of the full Commission and reinstate the order of the deputy on the ground that the deputy's order and findings are supported by competent substantial evidence.

The order of the full Commission is predicated upon its finding that the evidence and testimony on the petition for modification was merely cumulative of evidence and testimony upon which the deputy based his original order of October 3, 1963. We find we must disagree with this finding of the full Commission.

There was conflicting medical testimony in regard to both the original claim and the petition for modification. The deputy was well within his authority in accepting the testimony elicited from one Dr. Molina. The order of the full Commission contained the following in respect to Dr. Molina's testimony:

'During the hearing for modification, Dr. Molina testified that the claimant 'could possibly be benefited by a spinal fusion operation'. Prior to the first hearing, in a report that was made part of that hearing, Dr. Molina stated that he had recommended a spinal fusion. He further stated that he saw the patient in March 1964, and there seemed to be some improvement in claimant's condition, so at that time the idea of surgery went into the background. He examined the claimant in September and October 1963, and in March and July 1964. He testified at the modification hearing that the claimant had a...