Peck v. Palm Beach County Bd. of County Com'rs

• Decision Date: 16 December 1983
• Docket Number: No. AQ-126,AQ-126
• Citation: 442 So.2d 1050
• Parties: George PECK, III, Appellant, v. PALM BEACH COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.
• Court: Florida District Court of Appeals

Page 1050

442 So.2d 1050

George PECK, III, Appellant, v. PALM BEACH COUNTY BOARD OF COUNTY COMMISSIONERS, Appellee.

No. AQ-126.

District Court of Appeal of Florida,

First District.

Dec. 16, 1983.

Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & De Castro, Miami, for appellant.

Melanie Jacobson, West Palm Beach, for appellee.

Before ERVIN, C.J., and MILLS, ROBERT P. SMITH, Jr., BOOTH, LARRY G. SMITH, SHIVERS, WENTWORTH, JOANOS, THOMPSON, WIGGINTON, NIMMONS and ZEHMER, JJ.

PER CURIAM.

Claimant, George Peck (Peck), appeals the deputy commissioner's order denying permanent partial disability benefits for a hearing loss not covered by the guidelines established by the American Medical Association (AMA). We reverse.

Because our reversal of the deputy commissioner's order requires us to recede from former opinions of this court reaching a contrary result, it is necessary for the entire court to participate in the decision under the en banc provisions of Florida Rule of Appellate Procedure 9.331.

Peck, a forty-one year old patrolman, had been employed by the Palm Beach County Sheriff's Department since 1974. On November 1, 1978, Peck was required to qualify on the firing range, as he had done two to four times per year since 1974. He fired 50-100 times with a .357 magnum and ten times with a shotgun, with other officers firing near him. Peck testified that to his knowledge protective ear muffs were not required at that time, but since that time they are now required. Following the firing test, Peck noticed the loss of hearing he usually experienced, but he also experienced pain in his ears. The loss of hearing persisted. On May 25, 1979, Peck was examined by Dr. Murray, an ear, nose and throat specialist, who diagnosed permanent, high frequency deafness resulting from nerve damage in both ears. Dr. Murray characterized the injury as a classic case of noise-induced deafness, causally related to repeated exposure to gunfire at the firing range. He explained that Peck suffered a 45-50% hearing loss for the higher frequencies of 2,000-8,000 Hertz, but that for lower range frequencies, below 2,000 Hertz, Peck had no hearing disability. This translated into Peck's being able to hear lower register tones, such as a man's voice, but not being able to hear higher pitched sounds, such as a siren or burglar alarm. Additionally, Dr. Murray stated that Peck suffered "recruitment," i.e. if a sound exceeded a certain frequency, it would hurt his ears. Dr. Adams, a clinical audiologist, testified as an expert on the employer's behalf that based upon Peck's audiometric tests and the AMA Guides, Peck did not have a hearing loss that could be rated. The AMA formula for determining disability due to hearing loss does not measure impairment beyond 2,000 Hertz, such as Peck suffered. The deputy commissioner recognized the requirement that he measure Peck's hearing loss in accordance with the AMA Guides, as determined in Tallahassee Memorial Regional Medical Center v. Snead, 400 So.2d 1016 (Fla. 1st DCA 1981), and found that Peck did not have any permanent hearing loss that was measurable. Notwithstanding, he found that Peck suffered a compensable injury by accident which arose out of and in the course of employment on November 1, 1978.

The deputy commissioner's recognition of the requirement of referencing a rating of permanent impairment to the AMA Guides, as provided by Section 440.15(3)(a)3, is consistent with the court's opinions in Decor Painting & Iowa Mutual Insurance Co. v. Rohn, 401 So.2d 899 (Fla. 1st DCA 1981) and Jamar Sportswear, Inc. v. Miller, 413 So.2d 811 (Fla. 1st DCA 1982). Section 440.15(3)(a)3 mandates the Division of Workers' Compensation of the Department of Labor and Employment Security to "establish and use a schedule for determining the existence and degree of permanent impairment based upon medically or scientifically demonstrable findings." The statute further provides: "On August 1, 1979, and pending the adoption, by rule, of a permanent schedule, Guides to the Evaluation of Permanent Impairment, copyright 1977, 1971, by the American Medical Association, shall be the temporary schedule and shall be used for the purposes hereof." Keying in on the "August 1, 1979" language of the amended statute, a number of our decisions, while sustaining awards not based on evidence reflecting the use of the guides, have nonetheless observed that such awards, entered on or after August 1, 1979, were "technical violations" of Section 440.15(3)(a)3. Snead, at 1017; Vannice Construction Co. v. Silverman, 419 So.2d 369 (Fla. 1st DCA 1982); Dade American Hospital Supply v. Perez, 417 So.2d 296, 297 (Fla. 1st DCA 1982).

Although it does not appear from any of the above opinions whether the court was asked if Section 440.15(3)(a)3's provisions could be retrospectively applied to injuries which had occurred before the statute's effective date, the consequence of our decisions in Rohn and Jamar was to do just that, since they disapproved impairment ratings, not based on the guides, of injuries which had been sustained before August 1, 1979, the date Section 440.15(3)(a)3 became law. We now recede from Rohn and Jamar, as well as all other opinions of this court holding similarly, because they did not properly take into account the effective date the guides were required to be used.

Section 440.15(3)(a)3's provision that permanent impairment ratings be based on objective standards first appears in Section 10, Chapter 79-40, Laws of Florida. As then worded, Section 10--instead of simply declaring as does the final statute that the guides shall be used as of August 1, 1979--provided in part: "On the effective date of this act and pending the adoption of a permanent schedule, Guides to the Evaluation of Permanent Impairment, ... by the American Medical Association, shall be the temporary schedule...." (e.s.) Section 127 applied Chapter 79-40 "to all claims for injury arising out of accidents occurring on or after July 1, 1979."

During the 1979 legislative session, Chapter 79-40 was amended by Chapter 79-312. Although minor changes were made to Section 440.15(3)(a)3 by Section 8 of the act, the language arising from Chapter 79-40 remained intact in requiring the temporary use of the guides "[o]n the effective date of this act...." The July 1, 1979 effective date of Chapter 79-40 was later amended, however, to "apply to all claims for injury arising out of accidents occurring on or after August 1, 1979." Chapter 79-312, Sections 23, 25, LAWS OF FLORIDA (E.S.). SECTION 25¹ specifically narrowed the effective date to Sections 6-20 of Chapter 79-312. Significantly, Section 8 of the act comprises the permanent impairment provisions of Section 440.15(3)(a)3.

From our examination of the above session laws, we find that the legislature has unequivocally expressed its intent as to the date the temporary guides are to be used in rating the degree of permanent impairment: They are to be used in "all claims for injury arising out of accidents occurring on or after August 1, 1979." (e.s.) Unfortunately this declaration was not carried over in the language of Section 440.15(3)(a)3, as published in the compiled 1979 general statutes. No reviser's note accompanies the statute as to why the complete statement contained in Section 23 or 25 of the enrolled act was not employed.

If this appeal had been filed before the Official 1979 Statutes were adopted by the 1981 legislature, and if there were any genuine question of conflict between the enrolled act and the published statute, the rule of construction to be applied would be simple: The enrolled act is the best evidence of what the law is as to the matter dealt with and would prevail. See Preface to Florida Statutes, Vol. I, 1981 Florida Statutes at vii. This rule does not, however, apply since the order on review was not entered until November 16, 1982, and our jurisdiction had not vested until after the publication of the 1981 statutes. Cf. McCulley Ford, Inc. v. Calvin, 308 So.2d 189, 195 (Fla. 1st DCA 1974). If it were determined that there was conflict between the two, we would be faced with the contrary rule recognizing that those portions of the statutory law of the preceding regular session which were adopted by the next succeeding regular session constitute the best evidence of what the law is. See Preface to Florida Statutes, supra. Before we apply either rule of construction, however, it is necessary for us to decide whether there is in fact a conflict.

Due to the obvious expression of legislative intent appearing in the session law, we will not presume that the revised statute represents a deliberate attempt by the Joint Legislative Management Committee to make a substantive change in the statutory law--an action which is in excess of the authority granted it. Foley v. State, 50 So.2d 179, 184 (Fla.1951); Jones v. Christina, 184 So.2d 181, 184 (Fla.1966). We are confident that the purpose of the revisers in substituting the words "August 1, 1979" in Section 440.15(3)(a)3 for "the effective date of this act" was simply to reference the language of Section 8, Chapter 79-312, to that contained in Sections 23 and 25 of the act, describing the conditions under which the act was to take effect. The revision, under those circumstances, was carried out pursuant to the provisions of Section 11.242(1), Florida Statutes (1979), for the purpose of "removing inconsistencies, redundancies and unnecessary repetitions ...."

In view of the unambiguous language employed in Section 127 of Chapter 79-40, and in Sections 23 and 25 of Chapter 79-312, we now hold that the reference to August 1, 1979 in Section 440.15(3)(a)3 requires that the temporary guides be used to gauge the degree of permanent impairment only as to claims for injury arising out of accidents occurring on or after August 1, 1979. Accordingly, we recede from Rohn and Jamar and from any language in other...