Sharer v. Hotel Corp. of America, 31392

• Decision Date: 21 September 1962
• Docket Number: No. 31392,31392
• Citation: 144 So.2d 813
• Parties: James T. SHARER, Petitioner, v. HOTEL CORPORATION OF AMERICA, Consolidated Mutual Insurance Company, and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 813

144 So.2d 813

James T. SHARER, Petitioner, v. HOTEL CORPORATION OF AMERICA, Consolidated Mutual Insurance Company, and Florida Industrial Commission, Respondents.

No. 31392.

Supreme Court of Florida.

Sept. 21, 1962.

Miller, Cone, Owen, Wagner & Nugent and Granvel S. Kirkland, West Palm Beach, for petitioner.

Howard N. Pelzner, Miami, Burnis T. Coleman and Patrick H. Mears, Tallahassee, for respondents.

HOBSON, Jr., Circuit Judge.

Petitioner has filed his petition for Writ of Certiorari contending that the Full Commission erroneously reversed the order of the Deputy Commissioner which found the petitioner to have a permanent partial disability of 59 per cent. of the body as a whole and further finding that the petitioner was entitled to the maximum rate of compensation of $42.00 per week.

The rate of compensation was based on petitioner's monthly salary of $200.00, plus a finding by the Deputy that the reasonable value of meals furnished to the petitioner was $28.00 per week.

We will first dispose of the question of the petitioner's average weekly wage. The Full Commission reversed the Deputy on the ground that it does not appear from the record that there is competent substantial evidence which accords with logic and reason upon which the Deputy could have based his finding of $28.00 per week as the reasonable value of the means. We hold that the Full Commission erred and that there is competent substantial evidence in the record in support of the Deputy's finding which, in fact, was not even rebutted by the respondents after the Deputy gave respondents ample opportunity to present evidence on this point by deposition.

There seems to be no controversy as to the factual situation in the instant case. In 1950 petitioner claimant, a 57-year old male with an eighth grade education, had his left hand amputated about 7 inches below the elbow. At the time he was hired by the employer (one of the respondents herein) it was known by said employer that petitioner had lost his left hand. On February 17, 1960, while operating an ice cube cutting machine for his employer, the petitioner sustained injury to his right hand. The Deputy found that petitioner had, as a result of this accident, a permanent partial disability of 40 per cent. of the right hand. The carrier was voluntarily paying petitioner on the basis of a 40 per cent. permanent disability of the right hand. The Deputy held that under Section 440.15(5)(d)(2), Florida Statutes 1959, F.S.A., the injury to petitioner's right hand merged with the pre-existing permanent physical impairment, to-wit, amputation of the left hand, to cause a permanent disability which is materially and substantially greater than that which resulted from the injury to the right hand alone, and he established the petitioner's compensable disability under said statute at 59 per cent. of the body as a whole.

The petitioner has not cited nor have the respondents directed our attention to any Florida case factually similar to the instant suit which has dealt with Section 440.15(5)(d)(2), Florida Statutes 1959, F.S.A., nor has our independent research disclosed such a case.

Section 440.15(5)(d)(2), Florida Statutes 1959, F.S.A., provides as follows:

'Permanent disability after other permanent physical impairment. If an employee who has a total or partial loss or loss of use of one hand, one arm, one foot, one leg or one eye, or who has other permanent physical impairment incurs a subsequent permanent disability from injury or occupational disease arising out of and in the course of his employment which merges with the pre-existing permanent physical impairment to cause a permanent disability that is materially and substantially greater than that which would have resulted from the subsequent injury or occupational disease alone, the employer shall in the first instance pay all benefits provided by this chapter, but such employer shall be reimbursed from the special disability trust fund created by this paragraph for all compensation for permanent disability paid in excess of that allowed for such injury or occupational disease when considered by itself and not in conjunction with the previous permanent physical impairment.' (Italics supplied.)

Petitioner argues, and we agree, that the facts in the instant case come squarely within Section 440.15(5)(d)(2), Florida Statutes 1959, F.S.A., and that said section is clear, concise, and unambiguous.

The respondents have taken the position that since the prior loss of petitioner's left hand is an injury to a scheduled member, and that the accident giving rise to this claim only involved injury to a scheduled member, in order for the petitioner to receive benefits over and above those to which he is entitled for disability arising from the second injury alone, the petitioner must be permanently and totally disabled. To hold in conformity with this position would result in nullifying Section 440.15(5)(d)(2), Florida Statutes 1959, F.S.A.

Larson speaking in his disquisition on workmen's compensation law relative to the same position taken by the respondents has this to say:

'* * * This view appears to be unduly literal. The section, read in the light of the history and purpose of the legislation, certainly contains a strong implication that the 'materially and substantially greater disability' referred to is one which would be accompanied by commensurate compensation, whose increased amount is the reason for relieving the employer of part of the burden.' Larson's Workmen's Compensation Law, Vol. 2, Sec. 59.34, page 65.

This expression by Larson is even more persuasive when it is noted that he is discussing the workmen's compensation law of the State of New York from which our workmen's compensation law, as to the special disability fund provisions, was modeled. Workmen's Compensation Law, 1959 Changes. James T. Vocelle, 33 Fla.Bar Journal, page 556 (July 1959).

It is further contended by the respondents that subparagraph 5 of Section 440.15(5)(d), Florida Statutes 1959, F.S.A., which reads:

'Legislative intent. It is the purpose of this paragraph to encourage the employment of the physically handicapped by protecting employers from excess liability for compensation for permanent disability when as injury to a handicapped worker merges with his pre-existing permanent physical impairment to cause a greater disability than would have resulted from the injury alone. It shall not be construed to create or provide any benefit for injured employees or their dependents not otherwise provided by this chapter. The entitlement of an injured employee or his dependents to compensation under this chapter shall be determined without regard to this paragraph, the provisions of which shall be considered only in determining whether an employer or carrier who has paid compensation under this chapter is entitled to reimbursement from the special disability trust fund.'

precludes the award of compensation to this petitioner or any claimant based on subsection (d) of Section 440.15(5). Respondents say that Section 440.15(d)(1), (2) and (3) cannot be construed to provide any benefits for injured employees and can be used only to determine whether an employer or carrier is entitled to reimbursement from the Special Disability Fund. At first glance this position seems to be well taken. However, after a careful, painstaking dissection of the Workmen's Compensation Statute and consideration thereof in the light of the overall legislative purpose we hold that this contention must fail.

Section 440.15(5)(c) states as follows:

'The fact that an employee has suffered previous disability or received compensation therefor shall not preclude him from benefits for a later injury nor preclude benefits for death resulting therefrom; but in determining compensation for the later injury or death his average weekly wages shall be such sum as will represent his earning capacity at the time of the later injury, provided, however, that an employee who is suffering from a previous disability shall not receive compensation for a later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previous disability except as hereinafter provided in paragraph (d) of this subsection.' (Italics supplied.)

Upon reading Section 440.15(5)(c), which excepts paragraph (d), and Section 440.15(5)(d)(2) and (5), it is apparent that the latter two subsections are in conflict and cannot be reconciled.

Section 440.15(5)(c) confines an employee, who has a previous disability and later suffers a second compensable injury, to benefits for the second injury when considered by itself and not in conjunction with the previous disability. This is commonly known as an apportionment statute. However, an exception is contained in Section 440.15(5)(c) to this manner of determining benefits due the employee, said exception being paragraph (d) of Section 440.15(5), which paragraph is, in...