Power v. Joseph G. Moretti, Inc.

• Court: United States State Supreme Court of Florida
• Writing for the Court: THORNAL; THOMAS
• Citation: 120 So.2d 443
• Parties: Robert POWER, Petitioner, v. JOSEPH G. MORETTI, INC., Bituminous Casualty Corporation, Barnes-Richardson Construction, Liberty Mutual Insurance Co., Hercules Concrete Pile Co., Indemnity Insurance Co. of North America, Bechtel Corporation, Fireman's Fund Group, and Florida Industrial Commission, Respondents.
• Decision Date: 11 May 1960

Page 443

120 So.2d 443 Robert POWER, Petitioner,
v.
JOSEPH G. MORETTI, INC., Bituminous Casualty Corporation, Barnes-Richardson Construction, Liberty Mutual Insurance Co., Hercules Concrete Pile Co., Indemnity Insurance Co. of North America, Bechtel Corporation, Fireman's Fund Group, and Florida Industrial Commission, Respondents. Supreme Court of Florida. May 11, 1960.

Page 444

Kaplan & Ser, Miami, for petitioner.

Lally & Miller, Miami, for Joseph G. Moretti, Inc., and Bituminous Casualty Corporation.

Blackwell, Walker & Gray, Miami, for Barnes-Richardson Const. Co. and Liberty Mut. Ins. Co.

Paul E. Speh and Burnis T. Coleman, Tallahassee, for Florida Industrial Commission, respondents.

THORNAL, Justice.

Petitioner Power, an employee, seeks review of an order of the Florida Industrial Commission which reversed an order of a deputy commissioner who had modified a prior compensation order.

We must decide whether the record sustains the conclusion of the deputy to the effect that the original order was entered because of a 'mistake is a determination of fact.' Section 440.28, Florida Statutes, F.S.A.

Power, a carpenter, contracted a fungus infection while working for respondent Moretti in 1953. The infection directly affected the employee's feet. However it also produced an allergic reaction in the claimant's hands which is defined as keratolysis exfoliativa. The condition in claimant's hands was described as a peeling of the skin with origin unknown. Claimant was disabled until Apirl 12, 1955, but was treated by a physician and compensation was paid by respondent Moretti until September 1, 1955. Thereafter, claimant Power filed a petition for compensation naming as respondents all of the employers for whom he had worked after his initial disablement. The purpose of the petition was to obtain a determination as to whether Power had reached maximum improvement and if so, the degree of the permanent partial disability. On April 18, 1956, the deputy commissioner found that claimant reached maximum improvement on April 12, 1955, without any residual permanent partial disability. This conclusion of the deputy was formed in the light of conflicting testimony by doctors as to whether the condition of the claimant's hands after April 12, 1955, was produced or contributed to by the industrially suffered foot infection. One doctor expressed the opinion that the original fungus infection aggravated the employee's pre-existing ailment. On the other hand, a Dr. Funt, whose name is mentioned because of his connection with a subsequent hearing, was of the firm opinion that the disabling effect of the industrially related fungus infection terminated on April 12, 1955. He was of the view that the condition of the hands thereafter appearing was solely produced by the ailment described as hyperhydrosis. As a result of this first hearing the deputy chose to accept the testimony of Dr. Funt and entered his order accordingly. This order was reviewed by the full commission and affirmed on the basis that it was supported by competent, substantial evidence. The petition for writ of certiorari was denied by this Court by order filed February 6, 1957.

On March 7, 1957, Power filed the instant petition for modification of the first order which denied continued compensation.

Page 445

The petition for modification was grounded on an alleged mistake of the deputy in the determination of a fact at the prior hearing. On March 31, 1959, the deputy entered an order in which he concluded that he had made a substantial mistake in a determination of certain facts in his first order.

In his second order the deputy stated that he concluded that claimant had reached maximum recovery from the effects of the compensable injury on April 12, 1955, without permanent partial disability. He further announced that he had originally concluded that the continuing skin lesions on the hands of the claimant were noncompensable because of the underlying hyperhydrosis which was not related to the employment. The deputy by his second order explains the mistake by stating that he relied on the testimony of Dr. Funt which, though in conflict with that of another doctor was accepted by the deputy. The...