Sasso v. Ram Property Management, AG-112

• Decision Date: 29 April 1983
• Docket Number: No. AG-112,AG-112
• Citation: 431 So.2d 204
• Parties: Fred V. SASSO, Appellant/Cross-Appellee, v. RAM PROPERTY MANAGEMENT and Fireman's Fund Insurance Company, Appellees/Cross- Appellants.
• Court: Florida District Court of Appeals

Page 204

431 So.2d 204

Fred V. SASSO, Appellant/Cross-Appellee, v. RAM PROPERTY MANAGEMENT and Fireman's Fund Insurance

Company, Appellees/Cross- Appellants.

No. AG-112.

District Court of Appeal of Florida,

First District.

April 29, 1983.

Irvin A. Meyers, Orlando, for appellant/cross-appellee.

Randy Fischer of Haas, Boehm, Brown & Rigdon, P.A., Orlando, for appellees/cross-appellants.

ERVIN, Judge.

In this workers' compensation case, Sasso appeals from an order which denied his claim for permanent disability, wage-loss benefits on the ground that at the time of the injury his age was greater than that allowable for such benefits under the provision of Section 440.15(3)(b)3.d, Florida Statutes (1979). He launches several attacks against the order, urging both constitutional and nonconstitutional issues. We affirm.

In reaching our conclusions, we are called upon to determine: (1) whether the deputy erred in failing to bar the claim on the basis of the employee's misrepresentation of his age; (2) whether an appeal from the order of a deputy commissioner may raise on appeal for the first time the issue of the facial unconstitutionality of a statute; (3) whether the statute is violative of the equal protection clause of article I, section 2 of the Florida Constitution. A thorough consideration of the constitutional issue involves also a consideration of several subsidiary questions: (a) Is state action implicated? (b) If it is, what test should be applied to determine if the statute violates one's right to equal protection of the laws? The answer to the latter question involves a consideration of whether the statute has a rational relationship to the legislative objectives involved in the statute's passage, and if so, whether old age may be considered a suspect class that is entitled to a heightened form of judicial scrutiny in measuring the validity of legislation that allegedly discriminates against such class.

In 1979, Sasso applied for a job as a landscape gardner with appellee Ram Property Management. Although 78 years of age at the time of his application, and then collecting social security benefits, he hoped to earn a suitable income and remain active in his senior years. He misrepresented his birth date as "1917" on the job application, because he believed that he would not be hired if he disclosed his real age. He was hired and suffered an injury on September 19, 1979. The employer/carrier (E/C) provided medical and temporary total disability (TTD) benefits. Upon reaching maximum medical improvement (MMI), the claimant sought permanent disability, wage-loss benefits and attorney's fees. § 440.15(3)(b); 440.34(2), Fla.Stat. (1979).

I. The Claimant's Misrepresentation Does Not Bar His

Entitlement to Wage-Loss Benefits.

Pointing to the claimant's misrepresentation of his age, the E/C defended, arguing that the employer would not have hired Sasso had it known his actual age because of its fear that he might have been in poor health. The E/C relies on Martin Co. v. Carpenter, 132 So.2d 400 (Fla.1961), in which the Florida Supreme Court held that a claimant who deliberately misrepresents his physical condition on a job application would be barred from recovering workers' compensation benefits. In the case at bar, the deputy found that the "Martin v. Carpenter defense" was inapplicable, because "age is not a physical condition as contemplated under the law as set forth in the case of Martin Co. v. Carpenter, ...." We affirm this determination, agreeing that a proper reliance on this defense requires a causal relationship between the misrepresented physical or health-related condition, the industrial accident, and the subsequent claim for workers' compensation benefits. Martin Co., at 405, 406; see also Doric Food Co. v. Allen, 383 So.2d 316, 318 (Fla. 1st DCA 1980). Even a misrepresented physical condition on an employment application will not bar compensation, unless it is related to the injury claimed. Montgomery Ward & Co. v. Provenzano, 394 So.2d 1081, 1082 (Fla. 1st DCA 1981).

The E/C has failed to show how the claimant's age-misrepresentation related to his injury. What the employer appears to argue is that the aging process is equatable with physical impairment. We are unable to make such a determination on an individual basis without a record foundation. Accordingly, we affirm this portion of the deputy's order.

II. An Appellant May First Raise the Question of a Statute's

Constitutionality Before An Appellate Court.

The deputy commissioner denied the claim for permanent disability wage-loss benefits based on the so-called "age/wage-loss provision," Section 440.15(3)(b)3.d, Florida Statutes (1979), which states that "[t]he right to [permanent disability] wage-loss benefits shall terminate: ... d. When the injured employee reaches age 65 ...." On appeal the claimant argues that the foregoing violates his United States and Florida Constitutional right to due process, ¹ equal protection, ² his Florida Constitutional right of access to courts, ³ and the federal Age Discrimination in Employment Act (ADEA). ⁴

The record discloses that the parties did not raise or attempt to litigate the issue of the constitutionality of the age/wage-loss provision either before or during the hearing or during the period before the deputy commissioner's appealable order became final, as required by Section 440.25(4)(a), Florida Statutes. The E/C argues that this is fatal to the claimant's appeal, since the issue has not been properly preserved for appellate review. See Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982). We disagree. The issue raised on appeal involves the facial constitutionality of the statute, and such an issue is not cognizable by a deputy commissioner. Accordingly, it would have been futile to raise the issue below. Therefore, we recognize a very narrow exception to the rule stated in Sunland Hospital, requiring preservation of an issue for appellate review. The fact that the issue raised on appeal is strictly constitutional in nature and the statute's application formed the basis for the deputy's denial of permanent disability wage-loss benefits is sufficient to permit appellate review.

Next, the E/C contends that because the question of the facial unconstitutionality of a section of the workers' compensation law may not be adjudicated by a deputy commissioner, the case is not ripe for appellate review and must first be presented in a trial court. See Carr v. Central Florida Aluminum Products, Inc., 402 So.2d 565 (Fla. 1st DCA 1981). The claimant counters by asserting that this court has reviewed numerous claims that the new Workers' Compensation Act is unconstitutional, all of which have been appealed from determinations by a deputy commissioner. See, e.g., Carr; Johnson v. R.H. Donnelly Co., 402 So.2d 518 (Fla. 1st DCA 1981). ⁵

Deputy commissioners do not have the power to render a determination as to the constitutionality of a portion of the Workers' Compensation Act, because a hearing before a deputy commissioner is part of an administrative remedy. Cf. Rollins v. Southern Bell Telephone & Telegraph Co., 384 So.2d 650, 652-653 (Fla.1980). "[D]eputy commissioners function only as adjudicative officers in a traditional sense ...." Ortega v. Owens-Corning Fiberglas Corp., 409 So.2d 530, 532 (Fla. 1st DCA 1982). As the Florida Supreme Court recognized quite recently, a deputy is vested only with certain limited quasi-judicial powers. Smith v. Piezo Technology, 427 So.2d 182 (Fla.1983). As administrative officers, deputy commissioners lack jurisdiction to consider claims of the facial unconstitutionality of any section of the Workers' Compensation Act. Cf., Key Haven Associated Enterprises, Inc. v. Board of Trustees, 427 So.2d 153, 157 (Fla.1982). However, this court does have jurisdiction to consider such claims and is, effectively, the most suitable court to which a claim of statutory unconstitutionality can be made.

In a case, such as the situation at bar, the constitutional issue is not independent of the deputy commissioner's determinations. It "is inseparable from it, and the constitutional question is necessarily phrased, ingeniously or ingenuously, as a variation of" claimant's request for benefits, which is nonconstitutional in nature. Key Haven Associated Enterprises, Inc. v. Board of Trustees, 400 So.2d 66, 71 (Fla. 1st DCA 1981), aff'd in part and rev'd in part, 427 So.2d 153 (Fla.1982). The only impediment to disposition of an issue relating to the facial unconstitutionality of a section of the Workers' Compensation Act is that it must be shown that the issue is actually ripe for adjudication. As noted in Ortega, at 532, the Workers' Compensation Act, Chapter 440, does not offer this court the same fact-finding resources available in cases of administrative appeals under Chapter 120, Florida Statutes. Therefore, an insufficiently developed record might negate the possibility of appellate review. For example, the record should clearly indicate the appellant's standing to raise the issue of the facial unconstitutionality of a specific section of the law.

As a general rule, no one can urge the unconstitutionality of a workmen's compensation act who is not injuriously affected by the feature complained of. Thus, a constitutional question may not be raised by one benefited, rather than injured, by the operation of the provision attacked, or against whom no attempt is made to enforce the challenged provision, or by an employee having no right of recovery except under the assailed compensation act; and neither the employer nor the employee will be heard to urge the grievance of the other. On the other hand, one whose rights are adversely affected by the operation of a compensation act may assert its invalidity.

16 C.J.S. Constitutional Law § 76 at 243-244 (1956) (footnote cites omitted); see also Rhaney v. Dobbs House, Inc., 415 So.2d 1277, 1279 (...