Opinion
No. 33160.
October 28, 1964. On Rehearing March 3, 1965.
Writ of Certiorari to the Florida Industrial Commission.
John V. Christie and Allen Clements, Miami, for petitioner.
Summers Warden, Miami, for Miami Provision Co. and Iowa Nat. Mut. Ins. Co.
Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for Florida Industrial Commission.
This cause having heretofore been submitted to the Court on petition for writ of certiorari upon the transcript of record and briefs and argument of counsel for the respective parties to review the order of the Florida Industrial Commission in said cause, bearing date October 29, 1963, and the petitioner having failed to show that the essential requirements of law have been violated, it is ordered that said petition be and the same is hereby denied.
THOMAS, CALDWELL, ERVIN and HOBSON (Ret.), JJ., concur.
DREW, C.J., dissents with Opinion.
ON REHEARING
A rehearing having been granted in this cause and the case having been further considered upon the record, briefs and argument of counsel for the respective parties; it is thereupon ordered and adjudged by the Court that the original decision heretofore filed in the above styled cause be and it is hereby reaffirmed and adhered to on rehearing.
THOMAS, O'CONNELL, CALDWELL, ERVIN and HOBSON (Ret.), JJ., concur.
DREW, C.J., adheres to view expressed in dissent to original opinion.
THORNAL, J., would grant and recede from original opinion.
I believe the commission erred in reversing the order of the deputy in this proceeding upon authority of decisions condemning modification upon mere cumulative evidence. His findings with reference to change in claimant's physical condition, resulting in decreased earning capacity, have sufficient support in the evidence to sustain the award increasing compensation for permanent partial disability from 45% to 65%. The conclusion as to change in permanent disability in this case was one for the deputy upon the medical and other facts in evidence, not dependent upon the phraseology or conclusion of a medical witness.
Sheets v. City of Miami, Fla.App. 1959, 111 So.2d 690; Sonny Boy's Fruit Co. v. Compton, Fla. 1950, 46 So.2d 17; Hall v. Seaboard Maritime Corp., Fla.App. 1958, 104 So.2d 384, and McDonough v. Versailles Hotel, Fla. 1952, 57 So.2d 16.
I would accordingly reverse with directions for reinstatement of the deputy's award.