MARRIOTT IN-FLITE SERVICES AND CRAWFORD & COMPANY, APPELLANTS,
v.
SERGIO GARCIA, APPELLEE

Fla. 1st DCA | 1984-05-10
No. AU-413
ERVIN, C.J., and THOMPSON, J., concur.
450 So. 2d 569 Florida District Court of Appeal, First District (1984) Positive Treatment
Cited by 10 cases

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Synopsis

An employer/carrier appeals a workers' compensation award of permanent total disability and catastrophic loss benefits to an employee who suffered a severe shoulder injury requiring unsuccessful surgical repair. The court affirms, holding that catastrophic loss benefits under Florida Statutes section 440.15(2)(b) are properly awarded when nerve damage resulting from surgery necessitated by an industrial injury causes total loss of use of a limb.


Holding

The court held that catastrophic loss benefits are properly awarded when an industrial injury results in surgery that necessarily causes nerve damage, rendering the employee totally unable to use the affected limb in an industrial setting. The statute's requirement of 'total loss of use of such member because of organic damage to the nervous system' is satisfied when the injury-necessitated surgery itself causes the nervous system damage that results in total functional loss.


Headnotes

[1] Competent and substantial evidence supports a finding of permanent total disability in a workers' compensation case.

[2] An employee may qualify for catastrophic loss benefits under section 440.15(2)(b), Florida Statutes (1981), for the total loss of use of an arm due to temporary damage to…

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Key Quotes

“an employee who has sustained the loss of an arm, leg, hand, or foot, or total loss of use of such member because of organic damage to the nervous system, or has lost the sight of both eyes shall be paid temporary total disability of eighty percent of his average weekly wage”

Statutory provision defining eligibility for catastrophic loss benefits under section 440.15(2)(b), Florida Statutes (1981)

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Facts & Procedural History

On November 29, 1981, Sergio Garcia, a 64-year-old Cuban non-English speaker, suffered a severe work-related shoulder injury involving a complete rota…

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Opinion of the Court
WIGGINTON, Judge.

WIGGINTON, Judge.

Appellants, employer/carrier, appeal the deputy commissioner’s order awarding to appellee permanent total disability benefits and catastrophic loss benefits pursuant to section 440.15(2)(b), Florida Statutes (1981). We affirm.

We have carefully reviewed the record and find that competent substantial evidence supports the deputy commissioner’s finding of permanent total disability. The remaining issue, the catastrophic loss benefit question, merits some discussion.

On November 29, 1981, appellee, a sixty-four year old Cuban who cannot speak English, severely injured his shoulder in a work related accident. His treating physician testified that he suffered a complete tear of the rotator cuff of his right shoulder. Appellee underwent surgery in March, 1982, to repair the cuff, at which time the doctors determined that all of the surrounding muscles were not only torn but also were split. After surgery, appel-lee’s arm was in a cast until approximately April 13, 1982. Thereafter, appellee’s condition did not improve and by June, 1982, the treating physician determined that the surgery had been unsuccessful.

The deputy commissioner found that appellee is entitled to catastrophic loss benefits pursuant to section 440.15(2)(b), Florida Statutes (1981), for the maximum of six months due to the total loss of use of his right arm. The testimony of the treating physician, as well as that of appellee, supports a conclusion that for the six month period following his accident, appellee was totally unable to use his arm to perform any function in an industrial setting.

Section 440.15(2)(b), Florida Statutes (1981), provides in pertinent part:

Notwithstanding the provisions of paragraph (a), an employee who has sustained the loss of an arm, leg, hand, or foot, or total loss of use of such member because of organic damage to the nervous system, or has lost the sight of both eyes shall be paid temporary total disability of eighty percent of his average weekly wage .... In no event should the increased temporary total disability compensation provided for in this paragraph extend beyond six months from the date of injury.

Since appellee did not suffer the actual loss of his arm and has suffered no loss of his eyesight, he can only qualify for the benefits set forth in the above statute if the evidence supports a finding that he sustained a total loss of use of his arm “because of organic damage to the nervous system.” E.B. Malone Corp. v. Johnson, 425 So. 2d 622 (Fla. 1st DCA 1983) and Spitzer v. Bartlett Brothers Roofing, 437 So. 2d 758 (Fla. 1st DCA 1983). Although his treating physician, Dr. DePalma, testified that appellee suffered no immediate damage to his central nervous system as a result of his fall, we believe that the record does support a finding that appellee suffered damage to his nervous system as a result of treatment of the injury. The medical evidence shows that appellee underwent an operation in which, necessarily, nerves were cut as torn muscles were repaired. Therefore, unlike the situation in E.B. Malone Corp. and Spitzer, relied upon by appellants, in the instant case, appellee’s industrial injury did result in trauma and damage to his nervous system since the surgery he underwent was a direct result of his injury and that surgery rendered him totally unable to use his arm in an industrial setting for several months. Compare Santiago v. Orr Industries, Inc., 407 So. 2d 1026 (Fla. 1st DCA 1981). See also Van Eyk v. R.N. Hicks Construction Company, 377 So. 2d 793 (Fla. 1st DCA 1979), in which the court noted that section 440.15(2) refers to temporary, not permanent, total disability.

The above authorities support our conclusion that a finding of total loss of use of an arm due to temporary damage to the nervous system, as a result of surgery necessitated by an industrial injury, is an adequate ground for recovery pursuant to section 440.15(2)(b).

AFFIRMED.

ERVIN, C.J., and THOMPSON, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Hernandez v. Equip. Co. OF Am., 452 So. 2d 85 (Fla. 1st DCA 1984)
    …imant in E. B. Malone, who sustained only fractures of three fingers and various abrasions without any organic damage to the nervous system, appellant here has sustained organic damage to the nervous system. See Marriott In-Flite Services v. Garcia, 450 So. 2d 569 (Fla. 1st DCA 1984); Santiago v. Orr Industries, Inc., 407 So. 2d 1026 (Fla. 1st DCA 1981); Van Eyk v. R. N. Hicks Construction Co., 377 So. 2d 793 (Fla. 1st DCA 1979). Appellee contends, however, that the denial of catastrophic loss benefits shoul…
  • …sioners v. Chaplin, 460 So. 2d 544 (Fla. 1st DCA 1984); Atlantic Plastering, Inc. v. O'Hara, 454 So. 2d 743 (1st DCA 1984); Hernandez v. Equipment Company of America, Adjusto, Inc., 452 So. 2d 85 (1st DCA 1984); Marriott In-Flite Services v. Garcia, 450 So. 2d 569 (1st DCA 1984); E.B. Malone Corporation v. Johnson, 425 So. 2d 622 (1st DCA 1983); Santiago v. Orr Industries, Inc., 407 So. 2d 1026 (Fla. 1st DCA 1981); Van Eyk v. R.N. Hicks Construction Company, 377 So. 2d 793 (Fla. 1st DCA 1979). The holding in…
  • Preferred Aircraft Painting & CNA Ins. Cos. v. Duarte, 532 So. 2d 715 (Fla. 1st DCA 1988)
    …ant’s sciatic symptoms. The deputy found credible claimant’s testimony that he had suffered a total loss of use of his legs as a result of his industrial accident, and found this case governed by the holding of Marriott In-Flite Services v. Garcia, 450 So. 2d 569, pet. for rev. dismissed, 458 So. 2d 273, (Fla. 1st DCA 1984). The deputy further found that the surgery was necessitated by the industrial accident, and that it was the injury or event which gave rise to the claimant’s total disability and inabilit…

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