Horace Z. Brunson Plumbing & Heating Co. v. Mellander

130 So. 2d 273, 1961 Fla. LEXIS 2177
CourtSupreme Court of Florida
DecidedMay 10, 1961
DocketNo. 30899
StatusPublished
Cited by3 cases

This text of 130 So. 2d 273 (Horace Z. Brunson Plumbing & Heating Co. v. Mellander) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Horace Z. Brunson Plumbing & Heating Co. v. Mellander, 130 So. 2d 273, 1961 Fla. LEXIS 2177 (Fla. 1961).

Opinion

O’CONNELL, Justice.

The petitioners, the employer and the carrier, seek review of an order of the deputy commissioner affirmed by the Full Commission awarding the claimant, respondent here, permanent partial disability benefits based upon a finding by the deputy that the claimant had suffered a 25% dimunition in his wage earning capacity.

Petitioners contend that there is no competent substantial evidence to support the finding and order that the claimant suffered a 25% permanent loss of wage earning capacity, and also that both the deputy and the Full Commission misconstrued the provisions of Sec. 440.02(9), F.S.A.

While working for the employer, claimant on December 2, 1958 suffered a com-' pensable accident, being struck on the head by a descending elevator.

After medical treatment for the lacerations to his scalp, he returned the next day to his usual work as a journeyman plumber. He continued thereafter to work for the employer, but at lighter duties, until June 1959 when he voluntarily terminated his employment.

[274]*274The petitioners paid claimant temporary disability benefits through June S, 1959 and have at all times furnished medical care.

On August 12, 1959 claimant filed the instant claim in the alternative claiming additional temporary disability benefits or permanent partial disability benefits.

The final hearing in this cause was held on February 9, 1960.

The record shows that at the time of the accident, claimant, a white male about 51 years of age, was working as a journeyman plumber in heavy or industrial plumbing work. He acted as “lead man” which required that he read blueprints and lay out work for other men. He was required to work above ground level on scaffolding.

Claimant returned to his same work the day after the accident, but after several days was given lighter duties at ground level because of complaints of dizzy spells.

He continued working at lighter plumbing work with the same employer, receiving union scale wages, which were raised from $3.55 per hour to $3.60 per hour in April 1959. Claimant underwent medical treatment during this period.

In June 1959 claimant voluntarily quit his job with the petitioner and left the state. He returned to Florida at some indefinite date during the summer of 1959.

When he returned he sought employment with the petitioner but was refused, not because of his condition but because petitioner questioned claimant’s honesty.

Thereafter claimant worked for five different employers, doing light plumbing work. He had worked for the last one since November 1959 and was still employed by this firm at the time of the hearing. He did not attribute the termination of employment by the first four employers to his physical or mental condition which he contends resulted from the compensable injury.

Claimant’s complaints are that since the injury he has been subject to dizzy spells, headaches, nausea, inability to concentrate, inability to lift heavy objects, nervousness, insomnia and fatigue. He says that he is unable to work at heights, to lay out work from blueprints, or to perform heavy work, as he did before the accident. He says that he is only able to do light plumbing work. The evidence shows that of the plumbing work done in the Miami area, where claimant lives, approximately half is of heavy or industrial type and half of the light type. Claimant argues that because he is now limited to light plumbing work his job opportunities are considerably more limited than prior to the accident.

Claimant’s injury is a non-scheduled injury. Compensation benefits must be determined not on functional disability but on “disability” as defined in Sec. 440.02(9), F.S.A., i. e. on loss of wage earning capacity.

We are here required to determine whether there was before the deputy competent substantial evidence which accords with logic and reason to support a finding that claimant, because of the compensable injury, had suffered 25% dimunition in wage earning capacity in the same employment as he was engaged at the time of the injury, or in any other work that he can perform.

The factors to be considered in determining disability benefits in non-scheduled injuries have been discussed in Ball v. Mann, Fla. 1954, 75 So.2d 758, and in Southern Bell Telephone & Telegraph Co. v. Bell, Fla. 1959, 116 So.2d 617.

It is not disputed that claimant suffered a compensable injury and the record indicates that he has some functional disability. We have concluded, however, that the record does not contain competent substantial evidence, which accords with logic and reason, to support a finding of 25% dimunition of wage earning capacity.

On the question of loss of wage earning capacity the claimant offered his own testimony and that of a physician, Dr. von Storch, who examined but did not treat [275]*275him. The reports of several physicians were received in evidence. They are covered by the testimony of Dr. von Storch.

The testimony of two plumbers who worked with claimant before and after his accident was received. However, their testimony related only to claimant’s condition at a time prior to June 5, 1959 during which period claimant was admittedly temporarily partially disabled. The testimony of these witnesses is not relevant to the loss of the wage earning capacity of the claimant as it existed after June 5, 1959 or at the time of the hearing in February 1960.

In his testimony claimant discussed the effect of the injury only on his capacity to work in the plumbing trade. Further, his testimony related to loss of wages and not loss of capacity to earn wages and not only was the testimony speculative but it did not relate the loss of wages directly to the effects of the compensable injury.

For example when asked what percentage of time he “did not work compared to the available hours of work in the past year” i. e. from February 1959 to February 1960, he said:

“Well it would be just a guess. Maybe I lost maybe 30 or 35 percent of the time.”

When asked how “many hours of the work available in the past year” he did not work he replied:

“Well that is hard to say. I would say that maybe 600 or 700 or 800 hours.”

As pointed out in the case of Port Everglades Terminal Co. v. Canty, Fla. 1960, 120 So.2d 596, it is the intention of the workmen’s compensation law to compensate not for loss of wages but loss of wage earning capacity.

In connection with the loss of wages by claimant the record shows that the plumbing business was slow during the time involved and as testified by claimant the plumbing shops were spreading the work among all workmen, giving each man a share of the available work.

Further, as above stated, claimant was admittedly temporarily disabled until June 5, 1959, so any loss of earnings prior to that date could not be considered in proof of any permanent disability. Also claimant voluntarily removed himself from the labor market in June for some indefinite period of time.

The most definite evidence connecting loss of wages with the injury was that since working for his present employer, for whom he had worked since November 1959, claimant has lost 8 to 10 days because of nausea, which he attributed to the injury, and a cold which he caught along with the nausea.

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Bluebook (online)
130 So. 2d 273, 1961 Fla. LEXIS 2177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horace-z-brunson-plumbing-heating-co-v-mellander-fla-1961.