Parrott v. City of Fort Lauderdale

• Decision Date: 29 June 1966
• Docket Number: No. 34630,34630
• Citation: 190 So.2d 326
• Parties: Clyde W. PARROTT, Petitioner, Cross-Respondent, v. CITY OF FORT LAUDERDALE, and the Florida Industrial Commission, Respondents, Cross-Petitioner.
• Court: Florida Supreme Court

Page 326

190 So.2d 326

Clyde W. PARROTT, Petitioner, Cross-Respondent, v. CITY OF FORT LAUDERDALE, and the Florida Industrial Commission, Respondents, Cross-Petitioner.

No. 34630.

Supreme Court of Florida.

June 29, 1966.

Rehearing Denied Oct. 24, 1966.

L. Barry Keyfetz and Kaplan, Ser, Abrams & O'Malley, Miami, for petitioner, cross-respondent.

Gearld T. Nolan and Crowley & Nolan, Fort Lauderdale, for respondent, crosspetitioner.

Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for Florida Industrial Commission, respondent.

O'CONNELL, Justice.

We have for review by certiorari an order of the Florida Industrial Commission affirming two orders of the deputy commissioner, one awarding compensation and the other providing that, if claimant prevailed on appeal, the respondent employer would be liable for the cost borne by the commission in providing a transcript of the hearing for the indigent claimant.

Petitioner, the claimant, suffered a compensable injury to his low back on April 5, 1963 while employed as a garbage collector by the respondent. It was stipulated that claimant's average weekly wage from this employment was $62.25. However, he had concurrent, though seasonal, carnings of $75 to $100 per week from selfemployment as a car and boat washer and yardman. Respondent, the City, voluntarily paid for temporary total disability, medical treatment, including spinal fusion, and permanent partial benefits for 10 per cent disability of te body as a whole. On July 25, 1963, claimant filed claim for additional permanent disability benefits.

The deputy ruled that claimant's concurrent employments were too dissimilar to be combined for the purpose of computing average weekly wage and rate of compensation. However, in concluding that claimant had sustained no more than a 15 per cent loss of wage earning capacity, the deputy considered the factor, inter alia, that claimant was able to continue his self-employment activities as car and boat washer and yardman, although he could not continue to do the lifting required by his employment as garbage collector.

After claimant filed an application for review by the full commission, he was informed by the deputy that the cost deposit for preparing the transcript of proceedings would be approximately $235. Claimant thereupon filed an affidavit of insolvency and a petition to be relieved of such costs. After hearing, the deputy entered an order relieving claimant of such costs, but further providing that in the event he was successful 'on appeal,' respondent City would then be required to reimburse the commission for the amount of costs borne by it on behalf of the claimant. The City cross-petitioned for review of this order to the full commission.

The full commission affirmed both of the deputy's orders. The claimant seeks review of the compensation order, and the City has cross-petitioned seeking quashal of the order relating to the cost of the transcript used on appeal.

In his petition, claimant contends, alternatively, (1) that his two employments were not so dissimilar as to prevent combination of earnings from both in computing his average weekly wage; or (2) that if earnings from such concurrent employment were to be excluded in the computation of average weekly wage, they should also be excluded in determination of his post-injury earning capacity and loss of wage earning capacity, i.E., disability, resulting from the injury.

We have previously dealt with several facets of the problem of concurrent dissimilar employment, but we have not dealt directly with the question presented here. In J. J. Murphy & Son, Inc. v. Gibbs, Fla. 1962, 137 So.2d 553, we held that earnings from a concurrent but dissimilar employment could not be combined with the earnings from the injury-producing employment for the purpose of computing the average weekly wage. In Jaquette Motor Co. v. Talley, Fla. 1961, 134 So.2d 238, we held that earnings from such employments could not be combined for this purpose when the concurrent employment was one expressly excluded from coverage of the statute (employment by a railroad). In Wilson v. City of Haines City, Fla.App.1957, 97 So.2d 208, the District Court of Appeal, Second District, held that earnings from concurrent selfemployment as a private contractor could not be combined with earnings from the injury-producing employment in computing the claimant's average weekly wage. We can therefore answer claimant's first alternative contention by saying that under the facts of this case this claimant's earnings from his concurrent employment were properly excluded in determining average weekly wage because they were obtained from self-employment as a private contractor. In Board of County Commissioners v. Alman, Fla. 1963, 156 So.2d 850, the question presented was similar to but not the same as the one now before us.

The question now squarely presented to us is this: Whether earnings from concurrent employment engaged in by a claimant both prior to and after an injury, but properly excluded from conputation of the average weekly wage, i.e., pre-injury earning capacity, may nevertheless be considered in determination of post-recovery earning capacity and loss of wage earning capacity.

There are three possible holdings that may be given in answer to this question. The first would be to answer in the affirmative by holding that earnings from the concurrent employment may be considered in determining post-recovery earning capacity, even though earnings from the same employment were properly excluded in computing the average weekly wage, i.e., pre-injury earning capacity. But this answer is obviously unfair to the injured employee and benefits the employer in a manner not intended by the statute. We decline to adopt such a holding for the reasons given below.

When a claimant has no concurrent employment, or when such concurrent employments is similar and included in computation of the average weekly wage, the average weekly wage is a fair measure of wage earning capacity at the time of the injury. Furthermore, in such cases loss of wage earning capacity, i.e., disability is fairly measured by the difference between the average weekly wage and the post-recovery ability to '* * * earn in the same or any other employment the wages which the employee was receiving at the time of the injury.' F.S. Sec. 440.02(9), F.S.A.

But in cases in which earnings from concurrent employment are not included in the computation of average weekly wage such wage is not representative of pre-injury earning capacity. Moreover, to determine loss of wage earning capacity by comparing the average weekly wage, from which earnings from concurrent employment have been excluded, with post-recovery earning capacity, in which earnings from the same concurrent employment are included, obviously produces an unfair result. It does not fairly compensate the employee for loss of wage earning capacity which the statute is designed to do. Moreover, as the Michigan court said in Bowles v. James Lumber Co., 1965, 345 Mich. 292, 75 N.W.2d 822, at 823--824:

'If defendant (employer's)...