Opinion
No. 48337.
September 30, 1976. Opinion adhered to On Rehearing January 20, 1977.
Petition for review from the Industrial Relations Commission.
Lewis F. Cohen, Miami, for petitioners.
Stephen Marc Slepin of Kaplan, Schwartz Slepin, Miami and David F. Roemer, Coral Gables, for respondents.
We here review by certiorari a decision of the Industrial Relations Commission. We have jurisdiction under Article V, Section 3(b)(3), Florida Constitution.
Claimant Smith suffered a right inguinal hernia and a lumbosacral sprain from the same accident. Temporary total disability benefits were paid beginning July 30, 1974. On August 13, 1974 hernia surgery was performed. The carrier continued to pay temporary total disability benefits until December 17, 1974, well beyond six weeks after the hernia surgery.
Claimant sought payment of an additional six weeks of compensation relying on Section 440.15(6)(f), Florida Statutes, which provides:
"Compensation shall be paid for a period of six weeks from the date of the [hernia] operation."
Despite the fact that for more than six weeks following the hernia surgery claimant was receiving temporary total disability benefits for the back injury, the Judge of Industrial Claims awarded the hernia compensation benefits. The Industrial Relations Commission affirmed by short form order with Commissioner Friday dissenting.
Commissioner Friday stated in his dissent that if claimant was allowed to receive the benefits of Section 440.15(6)(f), Florida Statutes, in addition to temporary disability benefits for his back injury, the question of when the former benefits should be paid would arise. He declined to reach this "vexatious" question because he did not think claimant should be entitled to recovery of both benefits.
We agree with Commissioner Friday. Claimant should not be entitled to multiple recovery.
The decision of the Industrial Relations Commission is reversed and the cause remanded for proceedings consistent with this opinion.
It is so ordered.
OVERTON, C.J., and SUNDBERG, J., concur.
ENGLAND, J., concurs with an opinion.
ROBERTS and ADKINS, JJ., dissent.
I concur with the majority in reversing the Industrial Relations Commission. Section 440.15(6)(f), Florida Statutes (1975), does not require an award of dual benefits in this case, as the Commission has ordered and respondents now contend. The "scheduled" benefit prescribed for a hernia operation, which guarantees an injured party an ample period of recovery from this particular operation, may be appropriate in conjunction with unscheduled permanent disability benefits, but it is incompatible with temporary disabilities benefits which are required to be paid during the employee's "healing period". See Corral v. McCrory Corp., 228 So.2d 900 (Fla. 1969).
We do not reach this issue here because that case is not before us. But cf. Royal Palm Market v. Lutz, 126 So.2d 881 (Fla. 1961), holding that permanent disability benefits may be awarded for different injuries arising from the performance of a hernia operation.
Opinion adhered to On Rehearing; OVERTON, C.J., BOYD, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.
ADKINS, J., dissents.