CHARLES ABBENANTE, JR., PETITIONER, CROSS-RESPONDENT,
v.
UNITED PARCEL SERVICE, INC., LIBERTY MUTUAL INSURANCE COMPANY AND THE FLORIDA INDUSTRIAL COMMISSION OF THE FLORIDA DEPARTMENT OF COMMERCE, RESPONDENTS, CROSS-PETITIONERS

Fla. | 1970-09-30
No. 39063
ERVIN, C. J., CARLTON and BOYD, JJ., and SPECTOR, District Court Judge, concur.
241 So. 2d 1 Florida Supreme Court (1970) Positive Treatment
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

An employee suffered a finger cut at work in 1967, received a tetanus injection, and subsequently had a stroke. The Industrial Commission awarded workers' compensation benefits at a 25% disability rate (50% reduced by 50% due to pre-existing atherosclerosis). The Florida Supreme Court reversed in part, finding the maximum medical recovery date unsupported by evidence and the apportionment for atherosclerosis improper, and held the employee was entitled to total and permanent disability benefits.


Holding

The Court reversed the apportionment for atherosclerosis because there was no evidence the pre-existing condition produced independent disability or that its normal progression contributed to the current disability. The Court found the maximum medical recovery date of September 3, 1967 unsupported by competent and substantial evidence, as the employee required surgery three months later. The employee was entitled to permanent total disability benefits because the injury prevented him from performing services in the competitive labor market.


Headnotes

[1] A finding of maximum medical recovery must be supported by competent and substantial evidence that accords with logic and reason.

[2] Apportionment of a workers' compensation award due to pre-existing conditions is impermissible without evidence that the condition independently produced disability befor…

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Key Quotes

“An order establishing a maximum medical recovery date must be supported by competent and substantial evidence which accords with logic and reason.”

Establishes the evidentiary standard for determining maximum medical recovery and forms the basis for the Court's rejection of the September 3, 1967 date given the employee's subsequent surgery and ongoing treatment.

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Facts & Procedural History

Charles Abbenante, Jr. cut his finger while lifting a refrigerator on March 7, 1967, during his employment at United Parcel Service. After the injury,…

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Opinion of the Court
FRYE, Circuit Judge.

FRYE, Circuit Judge.

This case is before us on petition for writ of certiorari by Charles Abbenante, Jr., and cross-petition of the empl'oyer-car-rier, seeking reversal of an order of The Florida Industrial Commission filed September 24, 1969, -affirming an award of compensation benefits.

The petitioner suffered a cut on a finger of his right hand on March 7, 1967, while attempting to lift a refrigerator in the course of his employment as an employee of United Parcel Service, Inc. When the petitioner’s finger became infected he was sent to the employer’s physician on March 11, 1967 where the physician administered injections of penicillin and tetanus antitoxin.

On the morning of March 12, 1967, petitioner called the company physician and advised him that he was having trouble using his right arm and leg. The physician had the petitioner come to his office on that Sunday morning when, after examining the claimant, he advised him to apply heat to his arm and leg.

On that same evening the petitioner was in such condition that he was taken to a local hospital and subsequently admitted by the company physician for treatment of a stroke. The diagnosis was that the petitioner had had an occlusion of the left internal carotid artery, producing a cerebral infarct.

The petitioner, a 40 year old male, had been employed by United Parcel, Inc., for four years prior to the accident on March 7, 1967, and was earning an average wage of $125.00 per week.

On April 17, 1967, after release from the hospital, the petitioner was sent by the insurer to its own physician for examination and evaluation. The physician especially looked for any causal relationship between the tetanus anti-toxin injection and the claimant’s stroke. This physician expressed as his opinion that “in absence of any other apparent cause for this series of events, it is difficult to avoid the conclusion that there probably was a cause and effect relationship between these events.”

Based on the physician’s opinion, the employer-carrier authorized surgery in the nature of an endarectomy needed by the petitioner. Admitted to a hospital on November 28, 1967, the petitioner underwent the necessary surgery on December 7, 1967.

On March 5, 1968, after recuperating from surgery, the employer-carrier sent the petitioner to Goodwill Industries, a sheltered employment workshop, for rehabilitation. In July, 1968, after training as a dry cleaning worker, Goodwill Industries sent the petitioner to a prospective employer to try his hand in his new field of employment. The prospective employer released the petitioner after four days on the job because he could not do the simplest type of dry cleaning work. The petitioner re*3turned to the sheltered workshop where he remained until October 1968.

The Judge of Industrial Claims, hearing the case on December 5, 1968, held that the claim was compensable, determined the date of maximum medical recovery to be September. 3, 1967, awarded a disability rate of 50% of the body as a whole, and then reduced the rate by one-half after apportioning the award because of the, petitioner’s pre-existing atherosclerosis.

Both parties appealed to the full commission. The Industrial Relations Commission affirmed, with the Chairman dissenting on the ground that the claim was not compensable and that the Judge of Industrial Claims was in error in apportioning the award.

The date of the petitioner’s maximum medical recovery date was found to be September 3, 1967, by both the Judge of Industrial Claims and the full commission. The evidence shows that the petitioner entered the hospital for surgery almost three months later and remained there until December 14, 1967, and thereafter was treated on an out-patient basis by the attending physicians. An order establishing a maximum medical recovery date must be supported by competent and substantial evidence which accords with logic and reason. The September 3, 1967, date does neither. Andrews v. C. B. S. Division, Maule Industries, 118 So.2d 206 (Fla.1960).

There is no evidence that a portion of the petitioner’s disability stems from the atherosclerosis, nor is there any evidence that a portion of the petitioner’s present disability resulted from the normal progress of his atherosclerosis as of the time the award was made by the Judge of Industrial Claims. The petitioner had worked for the employer for four years, and had worked everyday, prior to the compensable accidental cut on his finger. If there is no evidence in the record that the petitioner’s atherosclerosis was independently producing disability before the accident and there was no evidence indicating that the normal progression of the disease was doing - so at the time permanent disability is determined, there can be no normal progression to apportion out of the award. Evans v. Florida Industrial Commission, 196 So.2d 748 (Fla.1967). See also, Tracy v. Americana Hotel, 234 So.2d 641 (Fla.1970).

The petitioner also urges that the Industrial Relations Commission erred in affirming the Judge of Industrial Claims when he found that the petitioner was not permanently and totally disabled by the chain of events that began when the petitioner cut his finger in a compensable industrial accidente

Until the cut on petitioner’s hand on March 7, 1967, he lost no time from work, and he worked everyday during the previous four years. According to the physician who, operated on the petitioner, and who saw him as late as November 26, 1968, the petitioner was at that time suffering from spasticity in the left side, weakness on the left side, incoordination involving the left hand, hyperactive reflexes on the left side, hemiparetic spastic gait, particularly on the right, and finally, central facial paresis.

The petitioner testified before the Judge of Industrial Claims that he was crippled in the right arm and in the left leg, that he is nervous and has black outs, that he drools out of the left side of his mouth, that he cannot talk as well as formerly, that his memory is bad and he forgets easily, and again, finally, that he has been adjudicated as permanently disabled for social security purposes.

A vocational employment counselor in testifying before the Judge of Industrial Claims was asked for his opinion, with regard to a reasonable vocational probability, as to whether or not the competitive labor market was open or closed to the petitioner. The counselor was of the opinion that such market was closed to the petitioner. This *4Court has held that when a worker is injured so that he can perform no services other than those limited in quantity, dependability, or quality, so that a reasonable job in the market does not exist, then under the Florida Workmen’s Compensation Law he may be classified as totally disabled. A workman does not have to be absolutely helpless for all purposes to be classified as totally disabled under the law. Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960).

The cross-petition of the employer-carrier urges that there is no competent substantial evidence of a causal relationship between the injection of tetanus antitoxin and the petitioner’s stroke. The record does however offer substantial medical opinion which, when considered with all the circumstances and evidence in the case, constitutes sufficient evidence to warrant a finding of causal relationship between the injection and the stroke. We affirm the Judge of Industrial Claims in his finding that the injection of the tetanus anti-toxin did cause the petitioner’s stroke.

The petition of the claimant is granted and the appealed order is in part quashed, and the cause is remanded to the Judge of Industrial Claims with instructions to enter an appropriate order not inconsistent with this opinion.

It is so ordered.

ERVIN, C. J., CARLTON and BOYD, JJ., and SPECTOR, District Court Judge, concur.


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  • Kirkland v. Harold Pratt Paving, Inc., 518 So. 2d 1320 (Fla. 1st DCA 1987)
    …So. 2d 768 (Fla. 1st DCA 1986); Lewis v. Town & Country Auto Body Shop, 447 So. 2d 403 (Fla. 1st DCA 1984). An order establishing the date of MMI must be supported by CSE which accords with logic and reason. Abbenante v. United Parcel Service, Inc., 241 So. 2d 1 (Fla. 1970). In this case, the order establishing the date of MMI as October 17,1986, is not supported by CSE which accords with logic and reason. The testimony of the doctors is uncontroverted that claimant has not yet reached overall MMI. Dr. Lowe…
  • Warwick v. Hudson Pulp & Paper Co., Inc., 303 So. 2d 701 (Fla. 1st DCA 1974)
    …ere confronted with the question of their individual liability; the question here solely relates to Hudson’s common law liability for the alleged negligence of its employees who were Warwick’s co-workers. . Abbenante v. United Parcel Service, Inc., 241 So. 2d 1 (Fla.1970). . Also see City of Lakeland v. Burton, 147 Fla. 412, 2 So. 2d 731 (1941). . Allen v. Employers Service Corporation, 243 So. 2d 454 (2 Fla.App.1971). . See Mullarkey v. Florida Feed Mills, Inc., 268 So. 2d 363 (Fla.1972), wherein the S…
  • Cent. Concrete Co., Inc. v. Harris, 475 So. 2d 1300 (Fla. 1st DCA 1985)
    …nd injury. Some injuries occurring while in rehabilitation, however, would be compensable. See Wood v. State Accident Insurance Fund, 30 Or.App. 1103, 569 P. 2d 648 (1977), rev. den., 282 Or. 189 (1978), and Abbenante v. United Parcel Service, Inc., 241 So. 2d 1 (Fla.1970). As to the issue of wage-loss benefits awarded prior to the accident, we find competent substantial evidence to support that award. As to the temporary total disability benefits and wage-loss benefits after July 15, 1983, the case is rem…

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