Russell House Movers, Inc. v. Nolin
| Decision Date | 22 May 1968 |
| Docket Number | No. 36788,36788 |
| Citation | 210 So.2d 859 |
| Parties | RUSSELL HOUSE MOVERS, INC., and American Surety Company of New York, Petitioners, Cross-Respondents, v. Joe C. NOLIN and Florida Industrial Commission, Respondents, Cross-Petitioner. |
| Court | Florida Supreme Court |
Blackwell, Walker & Gray, Miami, for petitioners, cross-respondents.
Donald Feldman and Feldman & Abramson, Miami, for respondent, cross-petitioner.
Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for Florida Industrial Commission, respondent.
We are requested by petition of Russell House Movers, Inc. and American Surety Company of New York (Employer-Carrier) and Cross-petition of Joe C. Nolin (Claimant) to review by certiorari an order of the Florida Industrial Commission approving an amended order of the Deputy Commissioner entered on May 27, 1966.
From the hearings in the case culminating in the amended order, the Deputy found claimant compensably injured his back in an accident in his employment as a heavy equipment foreman on December 24, 1963. Claimant was loading a truck with the use of another piece of equipment. The equipment fell from a loading ramp and as a result Claimant was turned into his seat, twisting his back from the shoulders to the hips.
At the time of the accident Claimant's average weekly wage was $125.00 and temporary total compensation was paid him to July 26, 1964. From the hearings the Deputy also found Claimant had had several prior accidents that injured his back, two of which were with the Employer; that he had a myleographic study of his back in 1960 after one of his injuries; that he had been told by one of the physicians who examined him he had a herniated disc and by another physician that he had a ruptured disc; subsequent to 1960 he had further back difficulties and was told by still another physician who examined him that ultimately he would go to back surgery just by ordinary living and that the possibilities were he would have future back trouble and trauma could cause it sooner; that after the accident of December 24, 1963 two examining physicians (Neal and Sweeney) testified they found Claimant had not reached maximum medical improvement and was entitled to a myleographic study; that prior to the December 24, 1963 accident Claimant went from one job to another without too much lost time. He occasionally wore a brace for his back.
The Deputy found Claimant had not reached maximum medical improvement, adding
'* * * that the previous accidents, which I find this Employer had knowledge of, pre-disposed the Claimant to further injury to the back; that Claimant was able to work subsequent to the former accidents but is now temporarily, totally disabled due to the accident of December 24, 1963; that 50% Of the Claimant's present condition is due to the prior accidents and 50% To the accident of December 24, 1963.'
The Deputy directed the Carrier to furnish Claimant a myleographic study and an operation, if warranted by the study; pay 50% Of all medical bills subsequent to the hearings (certain prior medical bills were disallowed because they were not authorized by the Carrier due to Claimant having gone to Alabama and received medical treatment there not authorized by the physician provided for him in Florida by the Carrier); and pay $21 per week temporary total disability benefits at the rate of 50% From the date of the last hearing until Claimant reaches maximum medical improvement. Jurisdiction was reserved by the Deputy to determine the extent of temporary total or temporary partial disability benefits, if any, prior to the hearings which ended in the order of May 27, 1966; and for the purpose of determining the permanent partial disability suffered by Claimant, if any, after he had attained maximum medical improvement.
The petition questions whether there is competent, substantial evidence that the accident of December 24, 1963 was the producing cause of Claimant's current disability and need for medical care.
Two physicians (Neal and Sweeney) who examined and treated Claimant testified, from their examination of him and the history of his condition given them by him, that his back injury from said accident was capable of temporarily producing Claimant's current disability and his need for medical care. This testimony was sufficient to sustain the Deputy's finding on this point United States Casualty Company v. Maryland Casualty Company (Fla.), 55 So.2d 741. These two physicians expressed views to the effect maximum medical improvement had not been reached by Claimant; that a myleographic study of Claimant's back condition should be provided and an operation on his back performed, if warranted by the study. We find no basis for granting the petition on the points raised.
We turn now to consideration of the Cross-petition. It contends the Deputy erred in apportioning medical care and temporary compensation, noting that the Employer-Carrier never raised the issue of apportionment as a defense; that the Employer had full knowledge the Claimant had prior back injuries in its employ and in the employ of others; and maintained there was no evidence of a pre-existing condition or disease independently contributing disability.
The record discloses that in 1955 the Claimant had his first severe back injury which required hospitalization. In subsequent years he had a chronic back condition which predisposed him to back injury and he sustained some four or five injuries to his back prior to his present disabling injury of December 24, 1963. But these later injuries were of slight duration, except one in February, 1963 which disabled him from working for some ten weeks and for which he was paid his first compensation benefits (six weeks' compensation). After the February, 1963 injury he resumed work for some eight months (with other employers and with Employer) until his present injury on December 24, 1963, the last four months of which he worked for Employer. During these four months, his employer's principal officer, Mr. Leonard, testified, Claimant's attendance at work was very good and there were no complaints. The testimony disclosed Claimant worked as a heavy equipment foreman or moving supervisor in moving houses or fill and at times operated the moving equipment himself. Claimant testified he had no trouble with his back during the last eight months he worked; that during this time he was feeling fine and doing well. There is no testimony to the contrary. In fact, it appears Employer, for whom Claimant worked from time to time over a period of several years, asked Claimant in August, 1963 to return to work with Employer, knowing that Claimant had had previous back injuries with Employer and the back injury with another employer in February, 1963 which had disabled him for ten weeks.
There is no question but that the Claimant had had trouble with his back over a period of years, but his ability to work and his actual record of work until December 24, 1963 appear not to have been appreciably curtailed by his trouble. We have held that because a claimant's 'condition could have become symptomatic at any time' was not justification for the Industrial Commission holding that 'he (claimant) had not in fact sustained a compensable accident * * *' Simmons v. City of Coral Gables, Fla., 186 So.2d 493, 494. It is common knowledge that people do heal and may be rehabilitated. They can also subsequently be reinjured. Our Court has commented that one who in an exemplary spirit makes an honest effort to continue to earn a livelihood, regardless of his injury, should not be penalized. Brewer v. Pan American Airways, Inc., 156 Fla. 812, 24 So.2d 521. See also, Tingle v. Board of County Commissioners (Fla.), 174 So.2d 1, 2.
Both the Petitioners and Cross-Petitioner contend there is no evidence or other justification in the case for a 50% Apportionment. In their brief the Petitioners state: 'A review of this record shows no basis for the percentage of apportionment that the Deputy gave in this case.' They say further: 'The Deputy's apportionment of 50% To this accident and 50% To a pre-existing condition is pure speculation on his part and should be reversed.' We agree. The present record is completely devoid of any testimony, expert or otherwise, which suggests any basis or percentages for an apportionment. Compare G. & L. Motor Corporation v. Taylor (Fla.), 182 So.2d 609, to the effect a deputy may not apportion where there...
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