Smitty's Coffee Shop v. Florida Indus. Com'n

• Decision Date: 22 February 1956
• Citation: 86 So.2d 268
• Parties: SMITTY'S COFFEE SHOP and Great American Indemnity Company, Petitioners, v. FLORIDA INDUSTRIAL COMMISSION, Workmen's Compensation Division, and RobertForbes, Respondents.
• Court: Florida Supreme Court

Page 268

86 So.2d 268

SMITTY'S COFFEE SHOP and Great American Indemnity Company, Petitioners, v. FLORIDA INDUSTRIAL COMMISSION, Workmen's Compensation Division, and RobertForbes, Respondents.

Supreme Court of Florida, Special Division A.

Feb. 22, 1956.

Rehearing Denied April 13, 1956.

Wm. McHardy Berson of Sanders, McEwan & Berson, Orlando, for petitioners.

Heskin A. Whittaker, Orlando, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.

O'CONNELL, Justice.

This is a petition for certiorari to review an order of the Florida Industrial Commission.

Two questions are necessary to be considered when determining whether the petition should issue. First is as stated in the order of the Deputy Commissioner to which the petition is directed, 'Is there a statutory basis for awarding compensation for an additional total disability period after the final award of temporary total and permanent partial disability compensation has been fully paid.'

The second question, as stated in order of the full Commission approving the order of the Deputy Commissioner, is as follows: 'It appears to us that the primary question presented by the application for review is whether the employer and carrier are entitled to credit against such compensation for temporary total disability any part of the compensation theretofore paid to the employee for permanent partial disability under an award which had long since become final.'

The pertinent facts are as follows:

The claimant, Robert Forbes, sustained a compensable injury to his left leg on August 30, 1951. A claim was filed after which the Deputy Commissioner, by order dated July 30, 1952, found that the claimant had reached maximum medical recovery on May 26, 1952, that as a result of his said injury claimant has suffered permanent partial disability of 50% loss of use of his left leg, and that claimant would need further medical treatment and observation as long as he lived. By said order, which was affirmed by the full Commission and by this Court, the employer and carrier ware ordered to pay the claimant compensation for 100 weeks at $27.60 per week, commencing May 26, 1952, in a lump sum, with discounts, and to furnish such further medical treatment as might be required by the injury. The carrier, after this order was affirmed by this Court, did in May 1954 comply with the order and pay the compensation to claimant in lump sum and continued to furnish medical treatment. On July 20, 1954, at the instance of the carrier an operation was performed on claimant's injured leg. The carrier paid the cost of the operation and post-operative care, but paid no compensation to claimant for the period of disability following the operation.

Claimant filed a claim for the period of temporary total disability following the operation. The Deputy Commissioner treated the claim as being under the provisions of Section 440.28, Florida Statutes, F.S.A., and after a hearing on the claim issued an order dated March 30, 1955, in which he found among other things that: 'In April of 1954 the employer/carrier placed claimant under the treatment of Dr. Robert Zellner of Orlando, Florida, who advised a further operation on claimant's leg. Claimant was employed up to the date of the operation, which was performed on July 20, 1954. Following the operation, claimant sustained a period of temporary total disability from July 20, 1954, through September 10, 1954, a period of seven weeks and four days. As the result of the operation, claimant's left leg improved to such an extent that he is now suffering from a 10% permanent partial disability of the use of the...