MIAMI BEACH AWNING COMPANY AND MANUFACTURERS CASUALTY INSURANCE COMPANY, PETITIONERS,
v.
JERRY SOCALIS, THE TRAVELERS INSURANCE COMPANY, PAUL E. SPEH, AS CONSERVATOR OF THE SPECIAL DISABILITY FUND, AND THE FLORIDA INDUSTRIAL COMMISSION, AN ADMINISTRATIVE AGENCY, RESPONDENTS; MIAMI BEACH AWNING COMPANY AND THE TRAVELERS INSURANCE COMPANY, PETITIONERS, V. JERRY SOCALIS, MANUFACTURERS CASUALTY INSURANCE COMPANY, PAUL E. SPEH, AS CONSERVATOR OF THE SPECIAL DISABILITY FUND, AND THE FLORIDA INDUSTRIAL COMMISSION, AN ADMINISTRATIVE AGENCY, RESPONDENTS
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The Florida Supreme Court reviewed an Industrial Commission order awarding workers' compensation to an employee who sustained two back injuries. The Court upheld the deputy commissioner's findings on wage calculation and disability apportionment between two insurance carriers, but vacated an attorney's fee award against the Special Disability Fund as lacking statutory authority.
The Court affirmed the $60 average weekly wage calculation as supported by competent substantial evidence, upheld the deputy commissioner's apportionment of disability (one-fourth and three-fourths between the two carriers), and vacated the attorney's fee award against the Special Disability Fund as lacking statutory authority under the 1957 statute, with such fees to follow the apportionment formula of the compensation award.
“the two insurance carriers and the attorney for the claimant entered into a stipulation that the claimant had sustained a 40% permanent partial disability of the body as a whole due to a diminution of earning capacity as a result of one or both accidents”
Establishes the parties' agreement on the total disability percentage at issue
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Join FLexlaw to unlock all legal intelligenceJerry Socalis, a 58-year-old awning installer, sustained back injuries in two work accidents: October 28, 1957 (while employed under Manufacturers Cas…
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The above cases were consolidated for hearing before this Court on petition for writ of certiorari to review an order of the full commission which supports in part the findings of fact and order of the deputy-commissioner 1 because there is competent *416substantial evidence which accords with logic and reason to buttress the findings, but which strikes a portion of the findings and modifies the order of the deputy commissioner because those portions are not supported by the evidence.
At the hearings held on December 16, 1958 and July 14, 1959 there were only two witnesses, the claimant Jerry Socalis and his physician, Dr. James F. Lyons. As a result of the hearings, as reflected in the order of the full commission, the two insurance carriers and the attorney for the claimant entered into a stipulation that the claimant had sustained a 40% permanent partial disability of the body as a whole due to a diminution of earning capacity as a result of one or both accidents. However, the claimant testified he had no disability of a permanent nature following the accident of October 28, 1957 and that he returned to work on February 14, 1958 with the following effect:
“Q. You continued to do light work up until you were injured the second time?
“A. On February 14, I started doing anything that came along.
“Q. Did that heavy work hurt you ?
“A. No, sir.”
At the hearing of July 14, 1959 uncontro-verted medical testimony was adduced that the claimant sustained a 10% permanent partial disability of the body as a whole due to the first accident. This was the only determination of permanent disability made in connection with and applying to the first accident of October 28, 1957. At the same hearing, Dr. Lyons testified the final determination of the resulting disability was an*417other 10% or a total functional disability of 20%.2
The deputy commissioner, in keeping with the dictates of this Court in Southern Bell Telephone & Telegraph Co. v. Bell, Fla.1959, 116 So.2d 617, in which the decision of Ball v. Mann, Fla.1954, 75 So.2d 758 was reaffirmed, made a specific finding #12 on loss of earning capacity.
The finding accurately covered the claimant’s age, education, industrial history, physical condition and inability to obtain work. These are the essential variables outlined by this Court as tests of loss of wage earning capacity. There was no presumption on the part of the deputy commissioner but a proper and valid finding based not only on functional disability but also on economic disability as well.
It is argued the deputy improperly calculated the average weekly wage of the claimant. The claimant’s work consisted of hanging and replacing awnings and making frames. When business was good, claimant worked nine to ten hours per day and, if the weather was good, six or seven days per week. Claimant, once he returned to work following the first accident, was able to do all the heavy work he had performed previously and at the same rate of pay. Claimant admits that the year 1958 was a bad year for the awning business and his employment was affected thereby. The record reveals that the average weekly wage for this employee for the previous thirteen weeks prior to the accident was $22.25 per week whereas the deputy commissioner determined the average weekly wage to be $60.00 based on a full 40 hour week at $1.50 per hour making the rate of compensation $35.00 per week.
The petitioner Manufacturers Casualty Company argues the instant case is on all fours with the case of Adams v. Florida Industrial Commission, Fla.App.1959, 110 So.2d 455. The Adams case is clearly distinguishable in that in the findings of fact of the deputy commissioner in the Adams case there was no finding as to whether the method provided in subsection (1) of Section 440.14 Florida Statutes (1957) F.S.A., could be “reasonably and fairly” applied. The full commission in the Adams case affirmed the order of the deputy commissioner and likewise made no finding as to such reasonableness and fairness.
Such is not the situation here. The deputy made the express and direct findings on this point.3
The full commission did not specifically pass on the point but did generally affirm the findings of fact of the deputy commissioner of which this is one. We hold that, insofar as the instant case is concerned and basing the finding on the record herein, there is competent substantial evidence to support this portion of the finding of the deputy.
Lastly, we come to the question of whether the full commission made a finding of fact when it apportioned the disability of the claimant equally between the Manufacturers Casualty Insurance Company and the Travelers Insurance Company after the deputy commissioner had apportioned *418the disability between the two carriers, one-fourth Manufacturers Casualty Insurance Company and three-fourths Travelers Insurance Company. The function of the full commission in this respect is to ascertain if the findings of the deputy commissioner were supported by competent substantial evidence.4
The full commission erroneously ordered that findings of fact numbers 10 and 11 be stricken from the general findings of the deputy commissioner as not being supported by the evidence. These two findings properly apportioned the permanent partial disability between the two injuries and must be read in pari materia with the remainder of the findings for a proper evaluation of the total findings. We have held in Hardy v. City of Tarpon Springs, Fla.1955, 81 So.2d 503, 506, that the “statement of facts should be clear and unambiguous and should be sufficiently definite and detailed to enable the reviewing authority to test the validity under the law of the decision resting upon those facts.” If the deputy commissioner sets forth a proper statement of facts, an intelligent review of the order is possible.
The full commission in striking the two sections of the findings in substance made substitute findings in order to arrive at the conclusion contained in its order that the apportionment should be on an equal basis instead as the deputy commissioner found.5 The deputy resolved the material facts and we have ascertained his findings on the apportionment feature of the instant case, insofar as the two accidents are concerned, are properly supported by the evidence.
The two carriers are not contesting the total percentage of the claimant’s permanent partial disability nor the amount of the award of the attorney’s fee to the claimant’s attorney. The special disability fund stipulated as to its responsibility for reimbursement of compensation at the hearing below at which it voluntarily appeared and in which it participated by the examination of witnesses. Because the question is not raised here we do not pass upon the power of the representatives of the fund to act in this capacity under the 1957 statute.6 Under the present law the question is moot. The stipulation makes no provision for attorney’s fees and, inasmuch as the deputy commissioner had no statutory authority under the act then in effect to make such an assessment against the special disability fund, such award was erroneous and should be vacated. These fees should follow the apportionment formula of the compensation award.
The petition for writ of certiorari of Manufacturers Casualty Insurance Company is denied in part and granted in part. The petition for writ of certiorari of the Travelers Insurance Company is denied. This cause is remanded to the full commission with directions to remand to the deputy for the entry of an order consistent with the views herein expressed.
It is so ordered.
THOMAS, C. J., and TERRELL, HOB-SON and ROBERTS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Wilcox, 458 So. 2d 1207 (Fla. 1st DCA 1984)…the injured employee is compensated for loss of wage earning capacity, not mere functional impairment. Eden Roc Hotel v. Kearsch, 218 So. 2d 751 (Fla.1969); Nuce v. City of Miami Beach, 140 So. 2d 303 (Fla. 1962); Miami Beach Awning Co. v. Socalis, 129 So. 2d 414 (Fla.1961). For the guidance of the deputy commissioner on remand we find instructive the language of the Industrial Relations Commission in Lancaster Youth Development Center v. Waters, IRC Order No. 2-3706 (February 21, 1979) (compensable industr…
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Penuel v. Cent. Crane Serv., 232 So. 2d 739 (Fla. 1970)…ge of claimant immediately prior to the injury. In other words, the actual earnings constituted the “full-time weekly wage” even though it was at a peak period of earnings. Respondent employer also relies upon Miami Beach Awning Company v. Socalis, 129 So. 2d 414 (Fla.1961). In this case the average weekly wage of the employee for the previous thirteen weeks prior to the accident was $22.25 per week, but the Deputy Commissioner determined the average weekly wage to be $60.00 based on a full forty-hour week a…
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Ray v. Waymire, 174 So. 2d 404 (Fla. 1965)…peal dismissed, Fla., 115 So. 2d 417. When Section 440.14(3), supra, is brought into play the deputy should specifically find as a condition that the other methods cannot “reasonably and fairly” be employed. Miami Beach Awning Co. v. Socalis, Fla., 129 So. 2d 414. The case last cited illustrates our point. In Socalis the deputy expressly found that the employee, through no fault of his own, had worked only part time during the critical 13 weeks. Further, he found that there was no similar employee who had wo…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- US Cas. Co. v. Md. Cas. Co., 55 So.2d 741 (Fla. 1951)
- Ball v. Mann, 75 So. 2d 758 (Fla. 1954)
- Hampton Hardy v. City OF Tarpon Springs, 81 So. 2d 503 (Fla. 1955)
- S. Bell Tel. & Tel. Co. & Fla. Indus. Comm'n v. Bell, 116 So. 2d 617 (Fla. 1959)
- Fla. Indus. Comm'n ex rel. Special Disability Fund v. Nat'l Trucking Co., 107 So. 2d 397 (Fla. 1st DCA 1958)
- McKIBBEN v. Hardware Mut. Cas. Co., 110 So. 2d 455 (Fla. 2d DCA 1959)
- Nica B. Adams v. Fla. Indus. Comm'n, 110 So. 2d 455 (Fla. 1st DCA 1959)