Newman Heating & Boiler Repair, Inc. v. Newman

• Decision Date: 18 March 1982
• Docket Number: No. AC-412,AC-412
• Citation: 418 So.2d 1008
• Court: Florida District Court of Appeals
• Parties: NEWMAN HEATING & BOILER REPAIR, INC., Appellant, v. James E. NEWMAN, Jr., Appellee.

Page 1008

418 So.2d 1008

NEWMAN HEATING & BOILER REPAIR, INC., Appellant, v. James E. NEWMAN, Jr., Appellee.

No. AC-412.

District Court of Appeal of Florida First District.

March 18, 1982.

Rehearing Denied Sept. 1, 1982.

Victor M. Halbach, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellant.

Stephen J. Pajcic, III, of Pajcic, Pajcic, Dale & Bald, Jacksonville, for appellee.

THOMPSON, Judge.

The employer/carrier (E/C) challenge a compensation order contending that the deputy commissioner (deputy) erred in awarding the claimant permanent total disability (PTD).

The claimant is a welder and boilermaker who is the president and sole owner of the employer corporation. He sustained a serious compensable injury to his right knee in September of 1975 that has necessitated two operations and has resulted in a 50% permanent partial disability (PPD) of his right leg. Claimant had serious pre-existing long-term back trouble for which he had been hospitalized several times. Claimant had continued to draw a salary from the employer corporation to and including the hearing date. His salary in 1978 and 1979 was higher than in prior years.

The deputy awarded the claimant PTD benefits on grounds that his back condition had merged with the compensable knee injury, rendering him totally disabled. The E/C contends that the deputy erred in not limiting claimant to the benefits payable for a scheduled injury to his right leg. For a number of years the Florida Supreme Court has said that diminished earning capacity is not a criterion for determining a compensation award in a case involving a scheduled injury. Mims and Thomas Manufacturing Co. v. Ferguson, 340 So.2d 920 (Fla. 1976); Jewell v. Wood, 130 So.2d 277 (Fla. 1961); Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 240 (Fla. 1959). The only exceptions to this rule are where the scheduled injury causes disability or incapacity in some other part of the body, as set forth in Kashin v. Food Fair, 97 So.2d 609 (Fla. 1957), or where claimant's disability is total rather than partial so that § 440.15(3), Fla. Stat., governing PPD, does not apply. Henderson v. Sol Walker Co., 138 So.2d 323 (Fla. 1962). Here, there is no substantial competent medical evidence that the scheduled injury caused disability or incapacity in some other part of the body so as to bring this case within the exception set forth in Kashin. In response to a question whether claimant's back pain was related to his knee problem, the claimant's treating physician, Dr. McClear, testified "I believe it could be." When asked whether the claimant's knee injury would have any effect on claimant's MILLS, J., concurs.

                back, Dr. McClear responded "I think it certainly could, yes."   In Kashin, the doctor was of the opinion that the claimant "was suffering from a cardiac condition which was, in his opinion, probably brought on by the loss of blood and shock at the time of the original injury."  (emphasis supplied)  The court held that such a nebulous and speculative conclusion as to the causal relationship between the accident and the ultimate cardiac condition did not constitute substantial competent evidence that the industrial accident caused the cardiac condition.  The language used by the doctor in Kashin was even less speculative and nebulous than that used by Dr. McClear.  In this case there is no substantial competent medical evidence to show a relationship between the back trouble complained of by the claimant and his industrial accident.  The lack of such evidence, together with the evidence that his back trouble had long pre-existed the industrial accident, makes it clear that this case cannot fit within the Kashin exception to the general rule on scheduled injuries.  Additionally, the claimant's scheduled injury has not brought about a total disability which would permit a finding of PTD under the decision in the Henderson case.  The alleged total disability found by the deputy was not based on the industrial accident and injury but on a combination of his industrial injury and his previous back problems.  The back trouble cannot be considered unless it was related to or caused by the industrial accident.  In addition, the claimant is still working and drawing a base salary.  This fact generally indicates only PPD, not PTD.  The award of PTD is reversed and the cause is remanded to the deputy with instructions to enter an award for PPD in accordance with the scheduled injury the claimant received
                

WENTWORTH, J., dissents.

WENTWORTH, Judge, dissenting.

The record in my opinion substantiates the deputy's conclusion that "the compensable physical impairment resulting from the aforesaid direct injury and dual aggravations merged with the pre-existing physical impairment of Claimant's two aforesaid diseases to render Claimant permanently totally disabled ... as the result of a total loss of wage earning capacity in the open labor market." Because the basis for the award is economic and not anatomic loss, and because claimant's wages from his dissolving business do not support existence of open market earning capacity (also negated by other evidence), I would affirm the award in this case without reaching the question of whether the injury was scheduled or body-as-a-whole as a result of aggravation of pre-existing disease.

ON PETITION FOR REHEARING

THOMPSON, Judge.

The claimant filed a motion for rehearing contending that in reversing the deputy's award of permanent total disability (PTD) benefits, this court overlooked its decision in Dade Federal Savings & Loan Association v. Smith, 403 So.2d 995 (Fla. 1st DCA 1981), and the Supreme Court case of Wright v. Gulf and Western Food Products, 401 So.2d 1316 (Fla. 1981). Although Dade Federal was not cited in claimant's original brief, it was not overlooked. Neither was Wright, which was cited and extensively argued. It might appear from a reading of the original majority opinion in this case that there is conflict between this case and the decisions in Dade Federal and Wright, but a review of those cases and similar cases reveal factual distinctions that render them inapplicable to this case.

The language in the original opinion that may have created some apparent conflict, to wit: "The alleged total disability found by the deputy was not based on the industrial accident and injury but on a combination of his industrial injury and his previous back problems. The back trouble cannot be considered unless it was related to or caused by the industrial accident." is stricken as it may be construed to mean that a combination of the factors which existed in Wright and Dade Federal would not support a finding of PTD or permanent partial disability greater than the scheduled disability.

Here, the claimant is a skilled welder and boiler maker who is president and sole owner of the employer corporation. Although claimant has only an eleventh grade education, he has a "high average" I.Q., and sufficient business acumen to have organized and successfully operated his own closely held corporation for some 20 years. He has extensive experience in repairing, servicing and replacing boilers, in selling and installing boilers and related equipment, and in managing his business and supervising his employees in the performance of their duties. The claimant has continued to operate his business since sustaining his industrial injury in 1975, and has continued to earn an income from his business. Although claimant's pre-existing physical condition, in combination with the disability resulting from his industrial accident, has rendered him incapable of engaging in many of the physical activities which he previously performed in the operation of his business, his condition has not prevented him from operating the business, from supervising and directing the activities of his employees, or from selling boilers and related equipment.

Wright and other similar cases are factually distinguishable because in those cases a combination of factors including physical condition, age, industrial history, education, job skills, and inability to obtain work combined to result in total loss of wage earning capacity making an award of PTD appropriate.

Neither ...