Opinion
No. 85-274.
March 26, 1986.
Appeal from the Circuit Court, Broward County, Joseph E. Price, J.
Susan J. Arrick of Law Office of Errol S. Cornell, P.A., Miami, for appellants.
Marcia E. Levine of Fazio, Dawson DiSalvo, Fort Lauderdale, for appellees.
An employer and its worker's compensation carrier appeal from an order determining their pro rata share of the settlement which an injured employee recovered from a negligent third party tort-feasor. They assert that the trial court erred (1) in determining that the employee, due to her comparative negligence, did not recover the full value of her damages, and (2) in denying to the carrier any allowance for the cost of rehabilitative services provided to the employee. We find no error in respect to either point and affirm.
The employee, Barbara Lore, a licensed practical nurse, was in the course and scope of her employment when, while in the residence of the tort-feasor, the latter's dog attacked her, causing her to sustain serious injuries. She settled her claim against the tort-feasor for $35,000.00. At the hearing to determine the carrier's pro rata share of the settlement recovery, the only witness to testify was the attorney for the third party tort-feasor. He opined that the full value of Mrs. Lore's claim, had it been a case of strict liability, was $100,000.00 but due to conflicting factual issues concerning whether Mrs. Lore may have provoked the dog, he had valued the claim for settlement purposes at $35,000.00, the amount for which it was ultimately settled. On the basis of that testimony, the court determined that Mrs. Lore, due to her comparative negligence, recovered only 35 percent of the value of the damages she had sustained. Accordingly, the carrier was awarded a proportionate share of the amount which it had paid for compensation and medical benefits (including future benefits to be paid) but was denied any recovery for amounts which it had expended to provide rehabilitative services pursuant to section 440.49(1)(a), Florida Statutes (1983).
Appellants first contend that under section 767.01, Florida Statutes (1983), the owner of a dog is strictly liable and the defense of contributory/comparative negligence is not available. Allstate Insurance Co. v. Greenstein, 308 So.2d 561 (Fla. 3d DCA 1975). However, the statutory defenses of section 767.04, Florida Statutes (1983), which apply to an action under section 767.01, Rattet v. Dual Security Systems, Inc., 373 So.2d 948 (Fla. 3d DCA 1979), were available and the witness testified as to the factual issues upon which those defenses could have been based. That testimony provided competent substantial evidence to support the trial court's determination and we may not retry the issue.
Appellants also argue, in reliance upon Hewitt, Coleman and Associates v. Lymas, 460 So.2d 467 (Fla. 4th DCA 1984), that the trial court should not have considered the testimony of the attorney for the third party tort-feasor. Reliance upon the Hewitt case as authority to support that argument is misplaced and fails to recognize the difference, when seeking to support the employee's claim, between the unsworn argument of the employee's counsel (condemned in Hewitt) and the sworn testimony of a witness, albeit the witness is the lawyer for the third party tort-feasor.
Appellants next contend that the trial court erred in failing to include in the amount recoverable under section 440.39, Florida Statutes (1983), the amount paid by the carrier for rehabilitative services authorized by section 440.49(1)(a). The vocational rehabilitation of an injured employee, while mutually beneficial to both the employee and the employer, is intended primarily to enhance the wage earning capacity of the injured employee, thereby reducing (if not eliminating) the employee's wage loss. Thus, rehabilitative services, at least to the extent that such services accomplish this intended purpose, provide a direct monetary benefit to the employer/carrier. Additionally, section 440.39(3)(a) is explicit in granting to the employer/carrier a pro rata recovery (against a judgment or settlement received by the employee against the third party tort-feasor) "for compensation and medical benefits paid or to be paid. . . ." The expense incurred by the employer in providing to the employee vocational rehabilitation is neither compensation nor medical benefits, each of which is clearly defined in the statute. There is thus neither an equitable basis nor a statutory basis to justify the employer's request for a pro rata recovery of the expense incurred for vocational rehabilitation, and the court quite properly eliminated that expense from the employer's claim of lien under section 440.39, Florida Statutes (1983).
AFFIRMED.
WALDEN, J., concurs.
GLICKSTEIN, J., concurs specially with opinion.
As the majority opinion recites, there were two issues before this court. The first issue is the subject of this concurrence.
The plaintiff wife and husband sued the defendants for negligence. Their unilateral pre-trial stipulation reflects that the rules of law involved in the case were section 767, Florida Statutes (1983), and the common law rules of negligence.
At the evidentiary hearing upon which the trial court's order was based, counsel for the defendants testified as follows:
There was a conflict of whether or not the plaintiff entered the home uninvited and whether or not she actually saw the dog and maybe she was running down the hallway and slipped and fell. There are numerous factual issues.
When I stated the defense was, in terms of whether the dog knocked her down or not, the real defense is proximate cause and whether or not the lady actually provoked the dog in some way.
It was my opinion the lady was a nurse, an LPN III, and she was wanting to get her RN. She had gone back to school late in life, like in her forties, and had gotten her LPN degree and intended on getting an RN degree.
Her ambition, she stated, in life was to be a floor nurse which would require her to be on her feet all day, a strenuous job. She sustained a trimedial fracture in the articular joint which necessitated casting and rehabilitation for some time.
All the doctors who saw her, my IMA, Dr. Gordon, gave her 5 percent disability which is 10 to 15 percent of the leg. They all agree for her to be a charge nurse or floor nurse is not the best thing to do. She's going to get swelling and pain as the day goes on.
I valued this case in the range of $100,000 because of the fact of the dog knocking her down, talking strict liability in terms of the person who owns the dog, as he's an insurer of the dog itself. Because of the comparative negligence as I viewed it in that the plaintiff may have provoked the dog by entering the home uninvited and by actually running down the hallway or in some ways the proximate cause argument as well as the fact she may have caused it herself, I felt that the reevaluation I made could be reduced by 50 to 70 percent to settle the case. I was talking thirty to $35,000. The case was involved for $35,000, which is where we are now. That's how I evaluated it.
He discussed both apples and oranges — defenses under the statute and comparative negligence — because the plaintiffs' pre-trial stipulation and the defendants' amended answer had raised both. The trial court's order discussed only the plaintiff wife's comparative negligence, determining it to be 65 percent. The majority opinion here appears to hold that the testimony related to the statutory defenses. The writer considers that both should constitute the bases for affirmance.