Opinion
No. 39013.
April 22, 1970.
Petition from the Industrial Relations Commission.
Jon E. Krupnick, of Walsh Dolan, Fort Lauderdale, for petitioners.
Gerald T. Nolan, Fort Lauderdale, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.
This cause is before us on petition for writ of certiorari to the Industrial Relations Commission.
Claimant, respondent herein, a registered nurse, was kicked in the abdomen by a patient while she was working for the employer herein. She was treated for traumatic colitis and reached maximum medical improvement a month after the accident. At the time of her industrial accident, she suffered from pre-existing psychiatric conditions and had had some fourteen (14) operations in the abdominal area between 1939 and the date of the accident. She was a Marine veteran and since 1954 had been receiving 80% combined disabilities from the Veterans Administration. At the time of the hearing she was receiving 100% disability for unemployability and a 100% disability from the Social Security Administration.
The Judge of Industrial Claims found that claimant's pre-existing conditions and diseases were known to the employer at the time claimant was employed; that as a result of claimant's industrial accident of October 23, 1963, claimant's pre-existing psychiatric disease was aggravated; that prior to the accident claimant's psychiatric condition did not prevent her from working although 90% of the psychiatric disease pre-existed the accident and only 10% of the psychiatric disease resulted from the accident; that claimant is permanently totally disabled as a result of the industrial accident.
The Full Commission affirmed.
The employer, Golden Isles Pavillion, contends that the Judge erred in not apportioning out of his award of permanent total disability, 90% which amounted to the normal progress of claimant's pre-existing psychiatric disease.
Before this accident respondent had worked thirteen (13) months as a registered nurse for petitioner, Golden Isles Pavillion. There was no record of her losing time from work during that time because of illnesses of any kind. From the day she was kicked she did not work. Medical and lay testimony indicated she could not work.
Much medical proof was given regarding her pre-existing abdominal ailments and surgery and psychiatric trouble. Like the relentless mailmen, she did not let these matters stop her completely.
The evidence before the trial judge was complex but one fact was clearly obvious. Respondent was totally disabled after the accident and the kick in the stomach was the incident which triggered conditions within her body that crystalized her infirmities to cause total disability. Under Florida Statutes § 440.49(4), F.S.A., if an employer knows of the physical infirmities of an employee, the employer may seek reimbursement from the Special Disability Fund for a portion of the compensation benefits.
We have carefully reviewed the record and find that the Order of the Judge of Industrial Claims, affirmed by the Full Commission, awarding permanent total disability benefits and attorney's fees is supported by competent substantial evidence.
Accordingly, certiorari is denied without prejudice to any right of petitioners to seek reimbursement from the Special Disability Fund.
It is so ordered.
ERVIN, C.J., and CARLTON and ADKINS, JJ., concur.
DREW, J., dissents.