JESUS HERNANDEZ, APPELLANT,
v.
EQUIPMENT COMPANY OF AMERICA, ADJUSTO, INC., FORMERLY KNOWN AS CORPORATE GROUP SERVICE, AND DIVISION OF WORKERS' COMPENSATION, APPELLEES

Fla. 1st DCA | 1984-05-23
No. AU-409
MILLS and WIGGINTON, JJ., concur.
452 So. 2d 85 Florida District Court of Appeal, First District (1984) Positive Treatment
Cited by 9 cases

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Holding

The court held that the deputy commissioner applied an incorrect legal standard by focusing on central nervous system damage, and that the case must be remanded for a factual determination on whether the claimant lost the use of his hand due to organic damage to the nervous system.


Headnotes

[1] Workers' compensation catastrophic loss benefits are not dependent upon damage to the central nervous system.

[2] An award for catastrophic loss is appropriate where an employee sustains the loss of an arm, leg, hand, or foot, or total loss of use of such member because of organic da…

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Facts & Procedural History

Claimant sustained a severe crushing injury to his left hand, requiring amputation of the little finger and multiple surgeries. A physician testified …

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

In this workers’ compensation case, claimant, Hernandez, appeals an order of the deputy commissioner which denies catastrophic loss benefits. Although the order awards temporary total disability benefits, appellant contends that he also is entitled to catastrophic loss benefits pursuant to section 440.15(2)(b), Florida Statutes (1979). Because we find that the deputy commissioner applied an incorrect standard of law, we reverse and remand on this issue.

Hernandez was injured in a compensable accident on March 25, 1980, when a punch press crushed his left hand. Dr. Coll, an orthopedic surgeon and the only physician to testify in the case, described the injury as a crushing, mangling injury to the ulnar border of the left hand. Claimant sustained ragged lacerations over the hypothe-nar eminence, including the little finger and palm. There were fractures of the fourth and fifth metacarpal. Most of the hypothenar muscles were crushed and were debrided at surgery. The little finger had to be amputated. Nerve injury to the digital nerves over the ring and little fingers were also surgically repaired. Dr. Coll affirmed that these nerves were part of the peripheral nervous system. Additional surgeries were performed January 8, 1981, May 5, 1981, May 28, 1981, and August 6, 1981. As a result of the development of neuromas in the injured areas, any light touch was either painful or extremely uncomfortable.

Dr. Coll opined that during the first six month period of treatment, claimant was temporarily totally disabled. He felt claimant was incapacitated and unable to perform “any kind of function” because of the time appellant spent in physical therapy. Dr. Coll noted that claimant was engaged in intensive rehabilitation during this time because of the multiple surgical procedures. When asked whether the temporary total disability was due to an injury to the peripheral or central nervous system, Dr. Coll replied that a significant component of the injury was due to damage to the peripheral nerves.

After several hearings, the deputy commissioner entered his order awarding temporary total disability benefits but denying catastrophic loss benefits. The order states:

Although the employee was disabled and unable to work during the six months immediately following his accident and even though he developed neu-romas in his hand, I find that this is not a catastrophic loss involving the central nervous system and, therefore, he is not entitled to catastrophic loss benefits for the six months immediately after the date of accident, March 25, 1980.

Appellant points out that the word “central” was deleted from section 440.15(2), Florida Statutes, in 19751 and argues that the deputy commissioner, therefore, applied an incorrect legal standard. Appellee admits that, under the applicable law, catastrophic loss benefits are not dependent upon damage to the “central” nervous system. The correct standard for cases, such as the one sub judice, which fall under the 1979 Workers’ Compensation Law was set forth and discussed in E. B. Malone Corp. v. Johnson, 425 So. 2d 622 (Fla. 1st DCA 1983). Under E. B. Malone, an award for catastrophic loss is appropriate where an employee sustains 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. Unlike the claimant 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 should be upheld because appellant failed to prove that he lost the use of his hand because of organic damage to the nervous system. We consider this a factual issue which should be determined by the deputy commissioner. The order sub judice contains no finding on this issue. Therefore, we reverse and remand to the deputy commissioner to determine in light of this opinion whether appellant sustained the total loss of use of his hand because of organic damage to the nervous system.

MILLS and WIGGINTON, JJ., concur. . See Chapter 75-209, section 6, Laws of Florida (1975).


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Citator

Cited By

  • …. 2d 401 (Fla. 1st DCA 1985); Seminole County Board of County Commissioners 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 Cons…
  • …me which conclusively demonstrated organic damage to the Claimant’s nervous system. Whether the loss of use of an arm is the result of organic damage to the nervous system is a question of fact for the deputy. Hernandez v. Equipment Co. of America, 452 So. 2d 85 (Fla. 1st DCA 1984). Before the deputy makes any such finding, however, the claimant must demonstrate (1) the total loss of use of an arm (2) because of organic damage to the nervous system. Atlantic Plastering, Inc. v. O’Hara, 454 So. 2d 743 (Fla.…
  • LGH Constr. Co. v. Gonzalez, 466 So. 2d 401 (Fla. 1st DCA 1985)
    …sability of 80 percent of his average weekly wage_” (e.s.) Whether the loss of use of one or both arms is the result of organic damage to the nervous system is a factual issue for the deputy. Hernandez v. Equipment Company of America, Adjusto, Inc., 452 So. 2d 85, 86 (Fla. 1st DCA 1984). “[T]he claimant must demonstrate (1) the total loss of use of an [*403] arm (2) because of organic damage to the nervous system. Seminole County Board of County Commissioners v. Chaplin, 460 So. 2d 544, 545 (Fla. 1st DCA 198…

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