Thomas v. T & T Trucking, QQ-489

• Decision Date: 18 April 1980
• Docket Number: No. QQ-489,QQ-489
• Citation: 382 So.2d 449
• Parties: Willie B. THOMAS, Appellant, v. T & T TRUCKING and Insurance Company of North America, Appellee.
• Court: Florida District Court of Appeals

Page 449

382 So.2d 449

Willie B. THOMAS, Appellant, v. T & T TRUCKING and Insurance Company of North America, Appellee.

No. QQ-489.

District Court of Appeal of Florida, First District.

April 18, 1980.

R. Cory Schnepper of Ser, De Cardenas, Levine, Busch & Allen, Miami, for appellant.

R. Dennis Comfort of Jones & Langdon, Gainesville, for appellees.

ERVIN, Judge.

Claimant Thomas appeals a judge of industrial claim's order finding him entitled to no greater benefits than those volunteered by the employer and carrier, and denying him attorney's fees and costs. The employer and carrier had voluntarily accepted Thomas as 5% permanently, partially disabled. We reverse and remand on the issues of payment of medical bills and attorney's fees, and remand for clarification on the question of merger.

Claimant, a truck driver, was twice compensably injured: Once, while employed by Tavilla Company, and second the subject of the present claim, while in the course of employment with T and T. Claim litigation with Tavilla was concluded with the entry of a final order approving the parties' joint stipulation, which, among other things, provided that Thomas be paid a lump sum amount of $1750 for temporary and permanent disability.

We agree that the JIC erred in failing to make a finding on whether Thomas's prior disability merged with the permanent partial disability received in the second accident "to cause a permanent partial disability that is greater than that which would have resulted from the subsequent injury . . . alone . . . ." Section 440.15(5)(c). Aside from the prior adjudication of permanent partial disability and lump sum compensation, the medical evidence raised the issue of merger to the extent that the order is unclear without specific findings as to whether it applied. Dr. Gilbert saw Thomas on December 8, 1978 and found him 15% permanently, partially disabled, assigning 10% to the lower back sprain, 5% of which was due to the February accident and 5% to the August accident. Dr. Aron stated Thomas was 5% permanently partially disabled as a result of the August accident. When he learned Thomas had previously injured his back and was rated 10% permanently partially disabled, ¹ he stated he would find Thomas 15% permanently, partially disabled, adding the 5% attributable to the August accident to the existing 10% permanent partial disability. Other medical testimony was similar. Under the circumstances, we agree the JIC should make a specific...