Wimberly v. Creamon's Chevrolet Co.

284 So. 2d 211, 1973 Fla. LEXIS 4276
CourtSupreme Court of Florida
DecidedOctober 11, 1973
DocketNo. 42802
StatusPublished
Cited by1 cases

This text of 284 So. 2d 211 (Wimberly v. Creamon's Chevrolet Co.) 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
Wimberly v. Creamon's Chevrolet Co., 284 So. 2d 211, 1973 Fla. LEXIS 4276 (Fla. 1973).

Opinion

McCAIN, Justice.

This cause is before us on petition for writ of certiorari to review an order of the Industrial Relations Commission which reversed and remanded to the Judge of Industrial Claims.

On December 6, 1963, while in the employ of Cut ’N Care Lawn Service, the claimant sustained a compensable back injury.

In April, 1969, following a varied series of employments, the claimant began work with the respondent, Creamon’s Chevrolet, [212]*212fully disclosing the details of his 1963 accident. On March 4, 1970, while in the employ of Creamon’s, the claimant sustained a second compensable back injury.

On April 2, 1970, the claimant and Cut ’N Care Lawn Service entered into a “Stipulation and Joint Petition for Final Settlement” of the 1963 claim. The claimant’s disability from the 1963 accident was stipulated to be a 35% permanent partial disability of the body as a whole, which the Judge of Industrial Claims approved. Cut ’N Care, as a result of this order, paid the claimant a lump sum in full settlement of the 1963 claim.

After the second injury, the claimant instituted the instant cause. The treating physician, who also treated the claimant for his accident in 1963, opined that the claimant’s disability required that he refrain from: lifting heavy objects; working more than 6 hours per day; standing for more than an hour; sitting for more than an hour; working above ground level; walking on uneven terrain; driving long distances; and, repeated bending and squatting. The physician also opined that the claimant should take short breaks between standing and sitting periods.

The physician further concluded that the two injuries sustained by the claimant had merged to produce a permanent disability materially and substantially greater than that which would have resulted from the second accident alone. He rated the claimant’s physical impairment at 34% of the body as a whole, with 4% of the total attributable to the second accident.

The Judge of Industrial Claims accepted the opinions of the physician as to the claimant’s physical impairment. He went on, however, to consider the question of wage earning capacity loss following the second accident. In this connection, it is noted that some months after the second accident, the claimant left his employment with Creamon’s and began work with Johnson’s Gulf Service. With the exception of several weeks of temporary partial disability, during which the claimant could not work full time, the claimant’s average weekly wage with Johnson’s was $150.00, as compared with an average weekly wage of $138.00, with Creamon’s.

Based upon the testimony of the physician and the information relating to wages noted above, the Judge of Industrial Claims found that as a result of the merger of injuries, the claimant had sustained a permanent partial disability from loss of wage earning capacity amounting to 40% of the body as a whole, with 5% attributable to the second accident. The Judge of Industrial Claims stated:

“In addition to the aforementioned variables, in arriving at this finding I have considered that the claimant, subsequent to the herein accident, with the exception of the periods of temporary partial disability, has earned as much or more wages than he earned prior to the said accident; however, I find that the other variables aforementioned adequately reflect that the claimant’s earning capacity has been considerably diminished and will remain so in the future.
“ . . .1 further find that the employer’s defense that Section 440.-15(5) (c) is a bar to claimant’s recovery of any benefits is not applicable inasmuch as said Section did not become effective until after the herein industrial accident.”

On appeal, the Industrial Relations Commission reversed and remanded, concluding that the Judge of Industrial Claims had failed to adequately indicate:

“ . . . what justification there is for the finding of a permanent loss of wage earning capacity, nor has he made findings of fact on the issue of loss of wage earning capacity in sufficient detail so as to permit an intelligent review of his order . . . . ”

In an amended order, the Commission noted that while Fla.Stat. § 440.15(5)(c), F.S.A., had been amended by Chapter 70-[213]*213312, Laws of Florida, effective July 1, 1970, an unamended version was in effect on the date of the accident — March 4, 1970. The Commission then held that the pre-amendment version of Fla.Stat. § 440.-15(5) (c), F.S.A., was applicable and served to limit claimant’s award on the second claim to that portion of the disability attributable to the second accident — found by the Judge of Industrial Claims to be a 5% disability.

In Pierce v. Piper Aircraft Corp., Fla., 279 So.2d 281, filed June 6, 1973, .we felt compelled to reevaluate our prior decisions on the necessity of making extensive, detailed findings of fact. Because of the improved system under which workmen’s compensation cases are now handled, we established the following guide:

“The Judge of Industrial Claims need make only such findings of ultimate material fact upon which he relies, as are sufficient to show the basis of an award or a denial of the claim. A long, verbose explanation of the reasoning for making such findings of fact is not required.”

In the case before us, the ultimate finding of fact we are concerned with is whether or not the claimant suffered a loss of wage earning capacity creating a greater disability than that caused by his physical impairment alone.

In finding that the Judge of Industrial Claims had not made sufficient findings of fact on this issue, the Commission quoted from the Judge’s order and then commented on the quoted portion of the order as follows:

“ ‘ . . . In addition to the aforementioned variables, ... I have considered that the claimant, subsequent to the herein accident, with the exception of the period of temporary partial disability, has earned as much or more wages than he earned prior to the said accident; however, I find that the other variables aforementioned adequately reflect that the claimant’s earning capacity has been considerably diminished and will remain so in the future.’
“The Judge of Industrial Claims has not informed us as to exactly what these aforementioned ‘variables’ which he considered were. The Judge does mention in paragraph three of the Order that the difference between the claimant’s actual wages as reflected by the payroll records, both with the employer herein and Johnson’s Gulf Service, where he worked subsequent to. the accident of March 4, 1970, accurately reflect his decrease in earning capacity for the period following the accident. He inserted in this portion of the Order a chart showing the claimant’s actual wages from March 17, 1970, through September 11, 1970, as well as his average weekly wage and temporary partial compensation; however, it appears after an examination of the record, that subsequent to leaving this employer, claimant’s wages had, if anything, increased and not decreased in a different type of employment, though admittedly his hours were different.

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

Related

Tolvanen v. Eastern Air Lines
287 So. 2d 299 (Supreme Court of Florida, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
284 So. 2d 211, 1973 Fla. LEXIS 4276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wimberly-v-creamons-chevrolet-co-fla-1973.