PAN AMERICAN WORLD AIRWAYS, INC., AND TRAVELERS INSURANCE COMPANY, APPELLANTS,
v.
ALFRED FRANCHINA, APPELLEE

Fla. 1st DCA | 1981-04-06
No. SS-158
MILLS, C. J., and THOMPSON, J., concur.
396 So. 2d 245 Florida District Court of Appeal, First District (1981) Caution
Cited by 14 cases

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Holding

The court held that the deputy commissioner erred in merging an industrial accident with a subsequent unrelated automobile accident and then apportioning disability. The court reversed the award of 75% permanent total disability.


Headnotes

[1] A subsequent, unrelated, non-compensable accident's injuries cannot be merged with an industrial accident to determine disability benefits.

[2] An award for permanent total disability cannot be reduced by apportioning a percentage to a subsequent, unrelated, non-compensable accident.

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Facts & Procedural History

Appellee suffered a back injury in an industrial accident and was awarded permanent total disability benefits. Subsequently, he was involved in an unr…

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Opinion of the Court
McCORD, Judge.

McCORD, Judge.

Appellants, employer/carrier, appeal from the deputy commissioner’s order awarding appellee permanent total disability benefits as a result of a January 10,1978, industrial accident in which appellee injured his lower back. We affirm in part and reverse in part.

After his industrial accident, appellee never returned to work. His treating physician gave him a 10% permanent partial disability rating and restricted his activities substantially. Appellee himself testified that he is very limited in his physical abilities in that he has constant pain in his back and right leg, he cannot walk, stand, or sit for more than a few minutes at a time, he must constantly change his position, and he has difficulty concentrating.

On July 3, 1978, while conducting a job search, appellee was involved in a subse quent unrelated noncompensable automobile accident in which he suffered a cervical sprain which, according to his treating physician, was not of a permanent nature.

In Paragraph 10 of his order, the deputy commissioner stated:

On the basis of the foregoing facts, it is my determination that claimant has suffered permanent total disability based upon diminution of wage earning capacity as a result of his industrial accident and injury of January 10, 1978.

However, in Paragraph 12 of the order, the deputy commissioner stated:

Because the automobile accident was a subsequent intervening accident, the injuries sustained from it must be apportioned from the disability award. After considering the medical evidence, the testimony of the claimant and my observations of him, I conclude that 25% of the award must be apportioned to the subsequent intervening automobile accident. ..

The deputy commissioner thereupon awarded appellee benefits for a 75% permanent total disability.

Appellants assert that the deputy commissioner erred in finding appellee to be permanently totally disabled by, in effect, merging the industrial accident with the automobile accident and thereafter apportioning damages. Appellants contend that no evidence of merger was presented. Appellants argue that the deputy commissioner obviously found that the industrial accident resulted in appellee being 75% permanently disabled, with the automobile accident being the cause of the remaining 25% disability. Therefore, at most, the proper award would have been a 75% permanent partial disability.

In their second point on appeal, appellants contend that no competent substantial evidence supports the deputy commissioner’s statement that appellee is permanently totally disabled. He suffered only a 10% impairment, according to his doctor’s testimony, and his job search was inadequate.

On cross-appeal, appellee asserts that the deputy commissioner erred in apportioning out 25% of the permanent total disability award on the basis of the subsequent automobile accident.

We agree with appellants and appel-lee that the deputy commissioner erred in finding, in one paragraph of his order, that the industrial accident caused permanent total disability and in declaring in another paragraph of the order that 25% of the disability was due to the unrelated, noncom-pensable automobile accident. The deputy commissioner appears to have applied reverse merger which is not permissible. See Riverside Baptist Church v. O’Hara, IRC Order No. 2-2727, 9 FCR 168, cert. denied 317 So. 2d 82 (Fla.1975). Therefore, we reverse his finding of a 75% permanent total disability and remand the cause for a determination of the degree of permanent disability caused by the industrial accident alone, without consideration of the automobile accident.

In light of the above remand, we decline to rule on appellants’ Point II relating to the sufficiency of the evidence to support a permanent total disability award. We have considered appellant’s third point and find it to be without merit.

Based on the medical testimony in the record, the deputy commissioner found that appellee is entitled to palliative care in the future. However, he ordered employer/carrier to furnish appellee “such palliative remedial treatment, care, ...” as he may require. Because the medical testimony supports only a finding of the need for palliative care and because the deputy commissioner clearly has found that appellee is, to some degree, permanently disabled, we direct that the word “remedial” in Paragraph 2 on page 13 of the deputy commissioner’s order be stricken.

Affirmed in part, reversed in part, and remanded for reconsideration.

MILLS, C. J., and THOMPSON, J., concur.


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Citator

Cited By

  • State v. Wilcox, 458 So. 2d 1207 (Fla. 1st DCA 1984)
    …abilities greater than would be suffered as a result [*1210] of each injury by itself. Despite this “merger” of the two conditions, the disability resulting solely from the second accident is not compensable. Pan American World Airways v. Franchina, 396 So. 2d 245 (Fla. 1st DCA 1981); Fisher v. Carroll Daniel Fisher Construction Co., 212 So. 2d 289, 291 (Fla.1968); Riverside Baptist Church v. O’Hara, IRC Order 2-2727 (March 14, 1975), cert. denied, 317 So. 2d 82 (Fla.1975). The increased disability resulting…
  • Gomez v. Neckwear, 424 So. 2d 106 (Fla. 1st DCA 1982)
    …issent for the following reasons. This case was decided initially by a panel of three Judges which ruled on the issues raised by Gomez and then gratuitously receded from this Court’s prior decisions in Pan American World Airways, Inc. v. Franchina, 396 So. 2d 245 (Fla. 1st DCA 1981), and Glades County Sugar Growers v. Gonzales, 388 So. 2d 333 (Fla. 1st DCA 1980), which adopted the “no reverse merger rule.” The writer of the opinion requested en banc consideration because of this conflict. After initial en b…
    1 / 2
  • Cathaleen Myers v. Sherwin-Williams Paint, 838 So. 2d 608 (Fla. 1st DCA 2003)
    …quent] accident is not compensable.” State, Dep’t of Pub. Health v. Wilcox, 458 So. 2d 1207, 1209-10 (Fla. 1st DCA 1984). See also Cosmos Contracting Co. v. Courtney, 617 So. 2d 439, 440 (Fla. 1st DCA 1993); Pan Am. World Airways, Inc. v. Franchina, 396 So. 2d 245, 246 (Fla. 1st DCA 1981). As to temporary indemnity benefits, the question that should have been addressed on remand — and must now be addressed on a second remand — is whether appellant’s disability attributable to the industrial accidents would ha…

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