Port Everglades Terminal Co. v. Canty

• Decision Date: 11 May 1960
• Citation: 120 So.2d 596
• Parties: PORT EVERGLADES TERMINAL CO., Inc., and Bituminous Casualty Corporation, Petitioners, v. Allan CANTY and the Florida Industrial Commission, Respondents. Allan CANTY, Petitioner, v. PORT EVERGLADES TERMINAL COMPANY, Inc., Bituminous Casualty Corporation and the Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 596

120 So.2d 596

PORT EVERGLADES TERMINAL CO., Inc., and Bituminous Casualty Corporation, Petitioners, v. Allan CANTY and the Florida Industrial Commission, Respondents.

Allan CANTY, Petitioner, v. PORT EVERGLADES TERMINAL COMPANY, Inc., Bituminous Casualty Corporation and the Florida Industrial Commission, Respondents.

Supreme Court of Florida.

May 11, 1960.

Lally & Miller, Miami, for Port Everglades Terminal Co., Inc. and Bituminous Casualty Corporation, petitioners-respondents.

Nadler & Tunick, Miami, for Allan Canty, respondent-petitioner.

Paul E. Speh, Tallahassee, for Florida Industrial Commission, respondent.

ROBERTS, Justice.

We here review on certiorari, upon the petition of the employer and its carrier, an order of the Florida Industrial Commission affirming an award of workman's compensation made by the Deputy Commissioner to the claimant, respondent here, for total permanent disability, but reducing the amount of the fee for claimant's attorney awarded by the Deputy Commissioner. In their petition the employer and carrier contend that the evidence does not support a finding of total permanent disability and that it was error to award a fee in any amount to claimant's attorney in the absence of evidence as to the reasonable value of his services. By cross-petition for certiorari, the claimant's attorney contends that the Commission erred in reducing the amount of the attorney's fee awarded to him by the Deputy Commissioner.

The claimant's injury--a herniated intervertebral disc--has left him, after two operations, with a 30 percent functional disability of the body as a whole. Testimony of the claimant and his physicians shows conclusively that claimant is able to perform unskilled manual labor that does not require heavy lifting and that will permit him to move around--the shifting of position being necessitated, according to claimant, because of the pain that he suffers '24 hours a day.' Claimant testified as to his efforts at obtaining employment since his accident, estimating that he had applied for 75 or 80 jobs. Many prospective employers refused to employ him when they found out about his injury, he said. He was, however, able to obtain and to hold, for varying periods of time, a number of jobs involving light work. He left one in order to have his second back operation and another when he became ill with the 'flu'. The others he was unable to retain, he said, because of his 'handicap'--either because he was unable to move around fast enough or could not lift heavy objects. An attempt at vocational rehabilitation training made in 1958--to learn television repairing--was unsuccessful. It was also shown that claimant had not applied for work at several places generally employing handicapped persons.

Based on this evidence the Deputy Commissioner made the following findings of facts: that after recuperating from his first operation claimant 'sought employment in various places but because of his injury was unable to hold any one job for more than a week or two'; that, following his second operation, 'claimant sought employment in various jobs with little success. He registered with the Florida State Employment Service, was sent out on several jobs, but was not hired because of his injury'; that 'because of his inability to sit or stand for long periods of time, and pre-occupation with pain, he was unable to continue [his vocational rehabilitation training];' that 'all of his adult life [claimant] has done an unskilled type of manual labor' and 'has an education of nine grades of school;' that claimant 'has a functional disability of 30% of the body as a whole but has no earning capacity.' The Deputy Commissioner concluded that 'claimant is permanently and totally disabled and, as a practical matter, has been so since his accident in November of 1955.'

On review, the Full Commission affirmed the finding of total disability. After noting that the claimant had had 'little success' in his attempts to obtain employment and was compelled to move about 'continually' because of his pain, the Commission's order stated that 'there is competent substantial evidence to sustain the Deputy Commissioner's finding that claimant is permanently totally disabled, and, as a result, suffers a 100 per cent loss of wage-earning capacity.'

In their petition here the employer and carrier contend that the claimant's own testimony shows that he was able to obtain and satisfactorily perform light work in a shoe store and in a car rental agency; and that, even though he is unable at the moment to find a similar type of employment, a finding that he is totally permanently disabled is unauthorized under our statute defining 'disability' as 'incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury,' § 440.02(9), Fla.Stat., F.S.A., and the decision of this court in International Minerals & Chemical Corp. v. Tucker, Fla.1951, 55 So.2d 720, 722.

In the International Minerals case, supra, this court held that a finding of total disability was unwarranted 'where the evidence, without conflict, supports the contention that the petitioner was able to engage in a gainful occupation, although different from his usual vocation, as a mechanic * * *'. In so holding, this court said, 'If petitioner's earning power is not wholly destroyed, certainly he is not totally incapacitated. See 58 Am.Jur. 778, section 283.' The text authority cited states that '* * * incapacity or disability cannot be found to be total where it appears that the claimant's earning power is not wholly destroyed and that he is still capable of performing remunerative employment.'

It will have been noted that the Deputy Commissioner made no finding that claimant was not 'capable of performing remunerative employment'--and, indeed, such a finding would not have been supported by the evidence, since it is undisputed that claimant is capable of performing some types of light work. His finding of total permanent disability was apparently based on the fact that claimant has been unable to find employment in the general labor market. This is indicated by his remarks made at the conclusion of the hearing when, after referring to testimony elicited from the claimant upon cross-examination concerning various employment opportunities for which claimant admittedly had not applied, he said:

'Also, the fact that the claimant might be able to obtain work with Mr. Axlrod who hired handicapped people, isn't the test; the test is whether or not he is available for the general labor market and if it is felt he could possibly be trained for it.'

The Deputy Commissioner must have had in mind the test of 'ability to compete in the open labor market' approved by this court in Southern Bell Tel. & Tel. Co. v. Bell, Fla.1959, 116 So.2d 617, 621, as one of the factors which may be considered in determining the degree of permanent partial disability resulting from an industrial accident. In holding that a claimant who was earning more after the accident then he did before could, nevertheless, be found to have sustained some loss of earning capacity, this court said:

'The difference in ability of a claimant to compete in the open labor market, before and after a compensable non-scheduled injury, is a proper means of determining the loss in earning capacity only if in applying the test all factors which could bear on the claimant's ability to compete and earn are considered; these factors include the variables mentioned in Ball v. Mann, supra , and evidence of his ability to compete as measured by his earnings at the time the test is applied.'

One of the 'variables...