Steele v. Pendarvis Chevrolet, Inc., 37634

• Decision Date: 19 March 1969
• Docket Number: No. 37634,37634
• Parties: Leslie M. STEELE, Petitioner, Cross-Respondent, v. PENDARVIS CHEVROLET, INC., Florida Automobile Dealers Self-Insurers' Fund, and the Florida Industrial Commission, Respondents, Cross-Petitioners.
• Court: Florida Supreme Court

Page 372

220 So.2d 372

Leslie M. STEELE, Petitioner, Cross-Respondent, v. PENDARVIS CHEVROLET, INC., Florida Automobile Dealers Self-Insurers' Fund, and the Florida Industrial Commission, Respondents, Cross-Petitioners.

No. 37634.

Supreme Court of Florida.

March 19, 1969.

Eugene W. Harris, of Peterson, Peterson & Harris, Lakeland, for petitioner, cross-respondent.

William M. Wieland of Wieland & Miller, Orlando, for respondents, cross-petitioners.

Patrick H. Mears and J. Franklin Garner, Tallahassee, for Flordia Industrial Commission, respondent.

THORNAL, Justice.

We review by petition for certiorari an order of the Florida Industrial Commission reversing a compensation order of a judge of industrial claims because of an asserted failure to follow the 'law of the case.'

We must decide whether the Full Commission properly applied the 'law of the case' rule and, also, a related problem as to the necessity for an apportionment.

Petitioner Steele, as an employee of respondent Pendarvis, sustained a compensable injury to his low back on October 12, 1964. On April 18, 1966, two days after his retirement from the service of respondent, Steele claimed he suffered another lumbosacral sprain.

From 1958, until the accident on October 12, 1964, petitioner was employed by the same employer and suffered several occurrences of lumbosacral strains. From the record of the first hearing held on July 29, 1966, it appears that the claimant did not suffer any loss of wage earning capacity until the October 12, 1964, injury. The testimony of a Dr. Lipinski, the treating orthopedic surgeon, showed that the April 18, 1966, accident was merely an exacerbation of symptoms of the October 12, 1964, injury. Dr. Lipinski found the claimant had a degenerative disc disease prior to the 1964 accident, but that up until 1964, the disc disease was Asymptomatic. That is to say, there was no subjective evidence of the disease. On August 23, 1966, Industrial Judge Whitmore issued his first order. He found that the incident of April 18, 1966, was a mere exacerbation of symptoms and that the claimant's present need for medical care was causally related to the October 12, 1964, accident. The Judge further stated in his order that:

'As for any apportionment between the October 12, 1964 accident and any previous back difficulty the claimant may have sustained, I find that this also should not be apportioned, since in each instance prior to the October 12, 1964 accident, claimant was able and did return to his regular occupation with the employer with no apparent difficulty.' (This order predated our opinions in Evans v. Florida Industrial Commission, 196 So.2d 748 (Fla.1967), and Stephens v. Winn-Dixie Stores, Inc., 201 So.2d 731 (Fla.1967).)

At the time of the first hearing, petitioner had not had corrective surgery. He had not yet reached maximum, medical improvement from the accident of October 12, 1964.

On March 23, 1967, the Full Commission entered an Order affirming the Judge's finding that the incident of April 18, 1966, was an exacerbation of symptoms. However, it reversed the Judge's finding that no apportionment was proper. The Full Commission stated:

'We think that it was error for the deputy commissioner not to apportion his award of compensation benefits * * * the same is hereby remanded to him with directions to make a determination as to the degree of aggravation reasonably attributable to the claimant's industrial accident of October 12, 1964, and apportion his award of compensation benefits in light of the holding in Evans v. FIC and Davis Grove Service, Case No. 34,535, opinion filed February 1, 1967.' (By the time the Full Commission entered its order we had decided Evans, supra, on February 1, 1967, and Stephens, supra, on January 25, 1967.)

On May 18, 1967, the employer-carrier sought certiorari in this Court claiming that the Full Commission erred in affirming the Judge's finding that the incident of April 18, 1966, was a mere exacerbation of symptoms. The Full Commission's reversal of the Judge on apportionment was not mentioned in the petition to this Court. However, in his brief the claimant said:

'In the light of the case of Evans v. Florida Industrial Commission, Florida, 1967, 196 So.2d 748, we are agreeable to the matter being returned to the Deputy on this point. We point out that we do not necessarily concede that apportionment is proper under the peculiar facts of this case and under the holding of the Evans decision, but we feel that in all fairness, the matter should be reconsidered.'

This Court denied the employer's petition for certiorari without oral argument, 200 So.2d 531.

On remand, Industrial Judge Whitmore conducted further hearings on September 7, 1967, to re-examine his first order in the light of the then recent decisions of Evans v. F.I.C., Supra, and Stephens v. Winn-Dixie Stores, Inc., Supra. He undertook for the first time to determine when the claimant reached maximum, medical improvement and what compensation benefits the claimant deserved. By his testimony the claimant repeated that though he had a series of back traumas up to 1964, his ability to earn wages remained unaffected until the lumbosacral strain of October 12, 1964. Since 1964 petitioner has been unable to work for any sustained amount of time. For the first time Dr. Dockery, an employment counselor, testified that a person who is 65 years old with claimant's physical limitations would be totally unemployable in the open labor market. Dr. Lipinski testified that since the first hearing he had successfully operated on the claimant, performing a laminectomy at the L4 and L5 level. Dr. Lipinski found April 17, 1967, to be the date claimant reached maximum, medical improvement, and he rated claimant with a 40% Functional disability. The doctor also testified that he had been treating claimant since his first back troubles in 1958 and That he had notified the respondent-employer of claimant's pre-existing degenerative disc disease several times since 1958. The doctor found that 20% Of the claimant's 40% Functional disability was due to the pre-existing degenerative disc disease. He found that the remaining 20% Functional disability was mostly due to the more recent October 12, 1964, lumbosacral sprain and exacerbation symptoms. The doctor stated that he felt that 'this man would have a great deal of difficulty finding employment at the trade he has had.' The doctor's deposition for the hearing on remand concluded with the following:

'Q. Doctor, prior to Mr. Steele's accident of October 1964, of course he had had several other accidents, two in 1963 I believe and one in 1959 or 1960. Did you feel that prior to this accident now in 1964 that his degenerative disk disease and the traumas that he has had to his back would likely be a hindrance or obstacle to employment if he were out seeking employment on the open labor market?

'A. Yes, I do. Were he to give a factual history and have someone examine him, or were I to examine him as an independent examiner, yes, I would feel that it would.

'Q. And this was also the case then in October of 1964 when he had his last accident?

'A. Yes, sir.

'Q. Doctor, would you feel that the permanent physical impairment that this man had prior to October 13 or 14, 1964, when he sustained the industrial accident we are discussing here, and adding to it the industrial accident, do you feel that this caused greater,--Caused it to merge and cause greater physical impairment materially and substantially greater than that which would have resulted from a subsequent injury or disc disease alone?

'A. Yes.' (emphasis added)

At the beginning of the hearing on remand counsel for the employer-carrier practically conceded that there was no need for apportionment when he stated for the record:

'I think frankly an apportionment is indicated in the case, but I think it does not all lie behind the October accident. This is our position that that being the case under the evidence that will be presented to you, it falls clearly and squarely within in the holding in Stephens case, While it would be...