Southern Bell Telephone & Telegraph Co. v. Bell

167 So. 2d 844
CourtSupreme Court of Florida
DecidedSeptember 9, 1964
DocketNo. 33013
StatusPublished
Cited by6 cases

This text of 167 So. 2d 844 (Southern Bell Telephone & Telegraph Co. v. Bell) 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
Southern Bell Telephone & Telegraph Co. v. Bell, 167 So. 2d 844 (Fla. 1964).

Opinion

O’CONNELL, Justice.

This case appears now before this Court for the third time. The facts can be found elsewhere, Bell v. Southern Bell Telephone & Telegraph Co., 108 So.2d 483 (3d D.C.A.Fla.1959); Southern Bell Telephone & Telegraph Co. v. Bell, 116 So.2d 617 (Fla.1959), however, in view of the importance of the rules of law to be discussed herein, it would be beneficial to review the facts and the history of the proceedings.

The respondent, Jack R. Bell, while employed as a lineman, sustained a compensa-ble back injury when he fell from a tele--phone pole October 11, 1952. He was out of work from the date of the accident to January 13, 1953, during which time the petitioner furnished medical treatment and temporary compensation benefits.

Upon his return to work, he resumed the same job, but with lighter duties. On April 21, 1954, Bell reinjured his back. Surgery was performed, after which he returned to work in December 1954.

Approximately eight months after his re-return to work, Bell bid for a company job •of PBX installer-repairman. There were seventeen applicants for this job; Bell and four others were accepted. He has continued in this employment up to the present time. He is now earning a base salary of $117.00 per week as compared with a salary •of $81.50 per week at the time of his injury.

The petitioner furnished Bell with medi•cal treatment and temporary compensation ■benefits until June 11, 1957, approximately the time at which Bell was deemed to have reached maximum medical improvement. In that same year, Bell filed a claim seeking permanent partial disability benefits based on the back injury and a urinary difficulty that had developed as an incident to the back injury.

The Deputy Commissioner found that Bell, as a result of his accident, had a 20% permanent partial disability of the body, and an award of that amount was made. The Full Commission reversed the Deputy’s order, and an appeal was taken to the District Court of Appeal, Third District. The District Court reversed the decision of the Full Commission and reinstated the Deputy’s order. 108 So.2d 483.

From that opinion, the employer petitioned this Court for writ of certiorari. The writ was issued, and the decision of the District Court was reversed with directions that the cause be remanded to the Deputy Commissioner for further proceedings. 116 So.2d 617.

Upon further hearings before a new Deputy Commissioner, an award of 21% permanent partial disability was made. Both parties sought review by the Full Commission. The Commission quashed the Deputy’s order and remanded the cause to him to make a finding as to what the reasonable expectations of the employee’s continued employment were.

The employee then applied for certiorari to this Court and we quashed the order of the Full Commission and remanded for consideration on the merits. 152 So.2d 473. The Full Commission, after denying Southern Bell’s application for oral argument, entered a short form order of affirmance of the Deputy Commissioner’s findings.

Now, petitioner Southern Bell brings this cause once again before this Court alleging that the Deputy’s order, as affirmed, is not supported by competent substantial evidence in accord with reason and logic, and departs from the essential requirements of the law. All must agree that it is time that [846]*846this controversy be finally settled, and so we turn to that task.

In the instant cause, we have before us the same evidence and the same order of the Deputy as were before us when we rendered our second opinion. 152 So.2d 473. The only addition to the record is the short form order of affirmance entered by the Full Commission after remand.

As we observed in our second opinion, the deputy, in his order awarding the claimant 21% permanent partial disability, indicated that he had considered all the variables and factors required by Ball v. Mann, 75 So.2d 758 (Fla.1954) and our opinion at 116 So.2d 617. Thus, the only question for determination by us, in the instant proceeding, is whether there is competent substantial evidence to support a finding that the claimant has suffered a 21% diminution in his ability to earn, in the same or any other employment, the wages he was earning at the time of his injuries.

As stated earlier, the claimant, at the time of the last hearing before the Deputy, was earning $117.00 per week, whereas at the time of his injury he was earning only $81.50 per week. He works for the same employer, but in a more skilled and better paid job.

The Deputy Commissioner considered the increased earnings of the claimant, but found that claimant’s employment was “sheltered” in nature, and therefore not representative of his wage earning capacity. Evidence of earnings in employment that is in fact “sheltered” is of little probative value in the determination of earning capacity loss. See Nuce v. City of Miami Beach, 140 So.2d 303 (Fla.1962). That is to say, earnings in “sheltered” employment do not accurately reflect the ability of a claimant to “compete in the open labor market.” (We use “compete in the open labor market” in the sense discussed in our first opinion at 116 So.2d 617.)

Therefore, if the evidence supports the Deputy’s finding that the claimant’s employment is in fact “sheltered,” and the wages paid him are not representative of his earning capacity in his employment, we must deny certiorari. However, if the evidence does not support this finding, and if the other factors that must be considered under the mandate of Ball v. Mann, supra, do not require a contrary holding, we will be required, on the issues here presented, to grant certiorari and quash the order of the Full Commission.

Our examination of this record reveals that the Deputy’s finding of “sheltered” employment is not supported by competent substantial evidence that accords with logic and reason. On the contrary, it shows that the claimant is not shown any favoritism or charity by his supervisors; and his efficiency rating is above average. Claimant testified that he had no difficulty performing his work. His basic complaint is that “every once in a while” he has an involuntary discharge of urine that is embarrassing to him. When this occurs at a time when he receives a call to go into the teletype room in which operators work at the PBX machines, he stated that he asks a fellow employee to answer the call so as to avoid his embarrassment and he performs other duties out of sight of the operators. The evidence does not reveal how often this occurs. It is significant to note, however, that, on the shift worked by claimant, he is the only PBX repairman on duty seven nights out of ten.

As noted above, the claimant obtained his present position in competition with others, and has performed satisfactorily the job requirements of the position for a period of several years. This is not a case where an injured employee is given lighter duties for the same or greater pay by a charitable employer. There is nothing to indicate that the wages paid to claimant are not being fully earned by him, or that he is not reasonably secure in his job.

All this leads to the inescapable conclusion that the Deputy’s finding of “sheltered” employment is not supported by [847]*847competent substantial evidence that accords with logic and reason. It follows that claimant’s earnings in this employment must be entitled to full probative value on the issue of wage earning capacity.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cooper v. Escambia County School Bd.
734 So. 2d 1072 (District Court of Appeal of Florida, 1999)
Commercial Carrier Corp. v. LaPointe
723 So. 2d 912 (District Court of Appeal of Florida, 1999)
Wal-Mart Stores, Inc. v. Liggon
668 So. 2d 259 (District Court of Appeal of Florida, 1996)
US Fidelity & Guar. Ass'n v. Kemp
658 So. 2d 1212 (District Court of Appeal of Florida, 1995)
Walker v. Electronic Products & Engineering Co.
248 So. 2d 161 (Supreme Court of Florida, 1971)
Kurtz v. Wall
182 So. 2d 618 (Supreme Court of Florida, 1966)

Cite This Page — Counsel Stack

Bluebook (online)
167 So. 2d 844, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-bell-telephone-telegraph-co-v-bell-fla-1964.