Young v. Dreamland Bedding Co.

• Decision Date: 27 September 1961
• Docket Number: No. 31045,31045
• Citation: 133 So.2d 414
• Parties: Ulysses C. YOUNG, Petitioner, v. DREAMLAND BEDDING COMPANY and Corporate Group Service, Inc., and Florida Industrial Commission, Respondents.
• Court: Florida Supreme Court

Page 414

133 So.2d 414

Ulysses C. YOUNG, Petitioner, v. DREAMLAND BEDDING COMPANY and Corporate Group Service, Inc., and Florida Industrial Commission, Respondents.

No. 31045.

Supreme Court of Florida.

Sept. 27, 1961.

John A. Lloyd, Jr., of Masterson, Meros & Lloyd, and James T. Earle, St. Petersburg, for petitioner.

Jack C. Inman of Berson, Barnes & Inman, Orlando, for Dreamland Bedding Co. and Corporate Group Service, Inc.

Robert B. Kane, Tallahassee, for Special Disability Fund of Florida Industrial Commission, respondents.

DREW, Justice.

Petitioner seeks to have reviewed an order of the full commission dated April 19, 1960 by this petition for writ of certiorari which is presented under and pursuant to Article V, Section 4, of the Constitution, F.S.A., of the State of Florida and Rule 4.1, Florida Appellate Rules, 31 F.S.A. The conservator of the Special Disability Fund appears in this cause as Amicus Curiae.

The facts are uncontroverted and the parties are in complete accord that the permanent partial disability of the petitioner as found by the deputy commissioner is 90% of the left hand caused by the accident of April 10, 1959. The record reveals that during World War I petitioner was wounded by an exploding shell in his left hand and, as a result of that injury some years before the present accident date, petitioner sustained the loss of the index finger, the middle finger and the ring finger of the left hand. As a result, petitioner was left with only a fully functioning thumb and fully functioning little finger on the left hand. Over the period of forty years the deputy found and the record so substantiates that petitioner had been able to perform almost all the normal functions of the hand, to the extent he worked in a foundry for sixteen years and later worked as a house painter requiring him to carry forty foot ladders. He could grasp and lift objects, push and pull objects and, by use of the thumb and little finger as a pincher, could hold and manipulate small articles. His regular trade as a carpenter was not hampered and throughout those years he earned wages from many different employers.

On April 10, 1959, petitioner suffered an injury by accident arising out of and in the course of his employment with respondent employer when, while moving a mattress and springs, his left little finger became caught around the spring and was pulled away from his hand, sharply wrenching the little finger and causing injury to the joint of the little finger between the proximal and middle phalanges and to the joint between the base of the little finger and the palm of the hand.

The deputy found that, as a result of the accident of April 10, 1959, the employee is unable to bring his little finger in contact with his thumb and he has completely lost the pincher function which he previously had; that it is now impossible for the employee to grasp either large or small articles; that he has lost the ability to use his left hand for any purpose except as a pusher or as a prop and that he has no more than 10% use of his hand and that the disability is permanent.

The disputed portion of the findings of the deputy which was modified by the full commission and which forms the basis for this review follows:

'7. That the said Claimant has suffered a 100% loss of use of the little finger and a 90% loss of use of the left hand. Prior to the accident, the loss of the three fingers constituted a functional loss of 50% of the hand. However, from an industrial or earning capacity standpoint, this loss was in fact not disabling at all.

'8. That the injury to the joint at the base of the little finger involves both the little finger and the hand, and Claimant's disability should be compensated for on the basis of the hand, rather than on the basis of the little finger. Claimant is entitled to the full 90% loss of use of the left hand.'

In modifying the order of the deputy commissioner, the full commission stated in part:

'The total or partial loss or loss of use of a member is a scheduled loss under Section 440.15(3), Florida Statutes. The effect of an injury on a claimant's earning capacity is not a proper factor in determining permanent partial disability due to a scheduled loss. Noah v. Board of Public Instruction of Orange County, 1956, 1 FCR 372; Ray v. Okeelanta Sugar Refinery, 1957, 2 FCR 289. Accordingly, the deputy commissioner erred in determining that claimant's pre-existing loss of three fingers did not constitute a disability and therefore all of his present permanent partial disability of the hand is compensable as a result of the injury suffered on April 10, 1959, and in failing to apply the provision of Section 440.02(19), Florida Statutes, that where a pre-existing disease is aggravated by accident only the aggravation of disability reasonably attributable to the accident shall be compensable. To the same end Section 440.15(5)(c), Florida Statutes, provides 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. * * *

'The principle of apportionment between the pre-existing disability and the disability attributable to a subsequent injury when considered by itself was recognized in Shiver's Super Store v. Florida Industrial Commission, Fla. [App.] 1958, 102 So.2d 831, wherein the cumulative effect of successive injuries was total loss of use of a hand but compensation for the subsequent injury was determined by deducting the pre-existing impairment from the cumulative disability. In Mandel v. Pratt, Fla.1960, 117 So.2d 413, involving two successive injuries to the same part of the body, the case was remanded to the Deputy Commissioner because he failed to recognize the possibility of aggravation and the resultant necessity for apportionment. In the instant case a remand for apportionment is not necessary as the Deputy Commissioner has found on competent substantial evidence that claimant has 90 per cent loss of use of his hand and prior to the accident had 50 per cent loss of the hand. The doctor who so testified added the logical conclusion that, 'by subtracting the two, that leaves us with a forty per cent disability due to the last accident.' If the injury had involved loss of use of the little finger only and not extended to the metacarpus of the hand, claimant's compensation would have been limited to that provided for loss of use of the finger. However, according to the Deputy's findings, claimant's pre-existing 50 per cent loss of his hand has been aggravated to the extent that he now has 90 per cent loss of use of the hand, and it follows that the aggravation of disability reasonably attributable to the accident and therefore compensable is 40 per cent loss of use of the hand. See Worden v. General Drop Forge Corp., 285 App.Div. 910, 137 N.Y.S.2d 671, app[eal] den[ied] 308 N.Y. 1052, 126 N.E.2d 572; and Carpenter v. Chevrolet-Buffalo Div., GMC, 2 A.D.2d 914, 156 N.Y.S.2d 691, affirmed [2 N.Y.2d XCII] 139 N.E.2d 432.'

We must now determine whether the full commission properly fulfilled its function with reference to the evidence to support the findings and the law applied to the findings. ¹

That this injury was an injury to a scheduled member is without issue in this review. The pertinent statutory provisions appear below. ²

A major responsibility of the deputy commissioner was performed when he made a finding of fact on the scheduled anatomical 'loss of use' in accordance with the provision of Section 440.15(3)(r, s) and neither the full commission nor this Court can disturb this finding if it is supported by competent substantial evidence and is in accord with logic and reason. ³

The full commission was correct in upholding that portion of the finding of the deputy commissioner that the claimant has a 90% loss of use of the left hand inasmuch as there was competent substantial evidence to support such a finding. We hold the full commission committed error, however, in amending the mandate of the deputy commissioner so as to make it read:

'Ordered that the said Order of the Deputy Commissioner be and the same is hereby modified by striking the finding that 'claimant is entitled to the full 90 per cent loss of use of the left hand,' and by amending the first mandate to read:

"1. Pay to the said employee compensation for 70 weeks from July 31, 1959, for 40 per cent loss of use of his left hand, less all payments of compensation heretofore made by the employer for this permanent partial disability."

What the full commission did that the deputy did not do was to credit the war injury residual against the combination of the residuals resulting from both the war injury and the instant industrial accident and their over-all effect on the loss of use of the hand. And how did they arrive at this conclusion? Aside from the rather obvious finding of fact which they made in their review ⁴ and which per se has been the subject of previous decisions of this Court, ⁵ they applied legal conclusions to the findings which were without basis insofar as the instant case is concerned.

The full commission in relying upon the two statutory provisions cited below ⁶ as a basis for its modification was without justification as there are no direct statutory provisions in the Workmen's Compensation Act of 1957 ⁷ relating to the aggravation of a non-industrial pre-existing accidental permanent partial disability by subsequent accident arising out of and in the course of the employment, except in those instances relating to reimbursement under the Special Disability Fund. Specifically, the claimant's condition here does not fall within the purview of Section 440.02(19) since this section relates to the acceleration or aggravation of a pre-existing disease. (Italics ours.)

There is an obvious failure on the part of...