Opinion
December 18, 1951.
Appeal from the Circuit Court, Polk County, D.O. Rogers, J.
Wendell C. Heaton, Tallahassee, and Macfarlane, Ferguson, Allison Kelly, Tampa, for appellants.
Trinkle Moody, Plant City, for appellee.
Clinton W. Tucker was receiving workman's compensation pursuant to an order of the circuit court holding him temporarily totally disabled. The order was that he should be paid for 350 weeks "unless it is sooner made to affirmatively appear that the claimant has sufficiently recovered from his injury as to be able to again pursue a gainful occupation." Tucker petitioned the Industrial Commission to hold a hearing and order an award in a lump sum payment in accordance with Section 440.20(10), F.S.A.
Upon this petition the deputy commissioner held a hearing and found petitioner was then 50% permanently disabled. He, therefore, held petitioner was entitled to a lump sum settlement on that basis. Petitioner appealed to the full commission which affirmed the deputy commissioner. Petitioner appealed to the circuit court and gained a reversal. From that ruling the carrier has appealed.
The circuit court's order is entered upon the premise that petitioner's condition was no better than when the order was entered in the first instance, holding him temporarily totally disabled. The lower court declared that there was no evidence that plaintiff's condition had changed, except for the worse. This theory is not devoid of some logic since petitioner was drawing compensation pursuant to an unappealed judgment of the circuit court holding that petitioner was temporarily totally disabled.
The lower court misapplied the statute to the facts found by the commission. We point out that the original order of the circuit court was not final because it expressly held the disability was temporary, also the award of compensation for 350 weeks was until he was able to pursue a gainful occupation.
Being at liberty to inquire into petitioner's present condition, irrespective of the previous judgment, we look to the evidence to ascertain whether the deputy commissioner and the commission had any basis to found their conclusion that petitioner was able to pursue a gainful occupation.
Dr. Hedrick testified that petitioner had a 50% permanent disability. Dr. Leinbach testified that petitioner was 100% permanently disabled from engaging in his usual work as mechanic, and that he was 50% disabled from any, or all types of, work. Our consideration then narrows to one law, Section 440.02, F.S.A.: "`Disability' means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury."
It is said in defense of the judgment that this section means work of a similar nature which, in this case, would be in the nature of a mechanic. We do not so interpret the statute. If petitioner's earning power is not wholly destroyed, certainly he is not totally incapacitated. See 58 Am.Jur. 778, section 283. This rule is substantiated also by Schneider's Workmen's Compensation Law, Vol. II, Second Edition, page 1428, section 418:
"In General — Permanent total disability is that condition which is deemed to incapacitate the employee from all work for all time, either actually or by direct statutory provision.
"An employee may be said to be totally incapacitated when he is disqualified from pursuing the usual tasks of a workman in such a way as to enable him to procure and retain employment. * * *" Marker v. Industrial Commission, 84 Utah 587, 37 P.2d 785, 98 A.L.R. 722; Winters v. State Workmen's Ins. Fund, 136 Pa. Super. 293, 7 A.2d 112; Micek v. Omaha Steel Works, 136 Neb. 843, 287 N.W. 645.
We, therefore, have a case where the evidence, without conflict, supports the contention that the petitioner was able to engage in a gainful occupation, although different from his usual vocation as a mechanic, and it was error to reverse the findings and award of the commission.
Reversed.
SEBRING, C.J., and ROBERTS and MATHEWS, JJ., concur.
CHAPMAN, J., concurs specially.
I agree to the majority opinion and judgment in this cause, but I desire to go one step further and touch upon a procedural question discussed in one of the briefs. It appears by the record that the Deputy Commissioner hearing the evidence adduced by the respective parties, after full and careful consideration, reached the conclusion that the claimant Tucker was disabled from a pursuit of a gainful occupation to the extent of 50% of the body as a whole and as a result thereof, under the provisions of Section 440.20(10), F.S.A., was entitled, as a matter of law, to lump sum payment for the then existing disability.
The Florida Industrial Commission is authorized by law to review on appeal the award of the Deputy Commissioner as based upon the testimony which was taken before him. The Industrial Commission heard argument of counsel, reviewed the applicable law, considered all the evidence in the record, and thereafter concluded that the order of the Deputy Commissioner was free from error, accurate and correct, both in law and fact, and under date of September 11, 1950, entered an appropriate order affirming the same in each and every respect.
The authority conferred and duties imposed upon the Florida Industrial Commission by Chapter 440, F.S.A., as amended, are essentially administrative in their nature, even though some portions of the authority so conferred may be regarded as quasi judicial thereby involving official judgment. In the record before us is a conclusion reached on review on the part of this administrative Board of Commission. The Commission's order affirmed the award of its Deputy Commissioner. The procedure of the Industrial Commission was to review the testimony adduced before the Deputy Commissioner and then apply the applicable law to the facts, but prior to the entry of an order of affirmance counsel for the respective parties were given an opportunity to present their views, both on the question of law and fact. The final order of the Industrial Commission was nothing more than the final conclusions of an administrative board.
The law makes a clear distinction between the conclusions or final orders of administrative boards or commissions functioning under statutory authority and the orders and conclusions of constitutional tribunals clothed with judicial powers. The point of cleavage is clearly set forth by the late Justice Whitfield in the case of South Atlantic Steamship Co. v. Tutson, 139 Fla. 405, 190 So. 675.
As the writer construes our adjudications, the Florida Industrial Commission is purely an administrative Board or Commission and the Supreme Court of Florida so held in the South Atlantic Steamship Company Opinion, supra, adopted in 1939, continuously through 1945. In the case of Florida Forest Park Service v. Strickland, adopted in 1945, 154 Fla. 472, 18 So.2d 251, 255, we reiterated when a Workmen's Compensation case came to the Circuit Court on appeal from the Industrial Commission, it then for the first time became "an original judicial controversy".
This Court, speaking through Mr. Justice Sebring, said: "When a case comes to the circuit court for review of an administrative order the circuit court is required to consider the case on the record and enter such order or judgment as appears to accord with the law and the facts. In considering the case on the record, no presumption obtains in favor of the correctness of the administrative determination of fact, but the circuit court should give to the findings of the commission about the same weight and consideration which a chancellor should properly give to the findings of law and fact of a master. Firestone Auto Supply Service Stores v. Bullard, 141 Fla. 282, 192 So. 865; Dixie Laundry et al. v. Wentzell, 145 Fla. 569, 200 So. 860; City of St. Petersburg et al. v. Mosedale, 146 Fla. 784, 1 So.2d 878." See Food Machinery Corp. v. Baldwin, 136 Fla. 369, 186 So. 796; South Atlantic Steamship Co. v. Tutson, 139 Fla. 405, 190 So. 675; Dupree v. Elleman, 139 Fla. 809, 191 So. 65; Cone Bros. Contracting Co. v. Massey, 145 Fla. 56, 198 So. 802.
In Florida Forest Park Service v. Strickland, supra, we further said: "Where a final judgment has been entered by the Circuit Court, the presumption exists, in the absence of anything in the record to show the contrary, that there is sufficient competent proof in the record to sustain it. Williams v. Phiel, 60 Fla. 272, 53 So. 638. Consequently, the burden is on one appealing from a judgment of the circuit court in compensation proceedings to show clearly that the court has arrived at an erroneous conclusion not warranted by the record. Firestone Auto Supply Service Stores v. Bullard, supra; Dixie Laundry et al. v. Wentzell, supra; City of St. Petersburg et al. v. Mosedale, supra." See City of Lakeland v. Burton, 147 Fla. 412, 2 So.2d 731; Forehand v. Manly, 147 Fla. 287, 2 So.2d 864; City of St. Petersburg v. Mosedale, 146 Fla. 784, 1 So.2d 878; Moorer v. Putnam Lumber Co., 152 Fla. 520, 12 So.2d 370.
It is true that certain language or dicta appearing in the opinions of this Court, to-wit: McCall v. Motor Fuel Carriers, 155 Fla. 854, 22 So.2d 153; Crawford v. Benrus Market, Fla., 40 So.2d 889, and Sonny Boy's Fruit Co. v. Compton, Fla., 46 So.2d 17, and similar cases, may be construed to mean that a new and different rule (from that enunciated by us in Florida Forest Park Service v. Strickland, supra), had been adopted. It is my view that the language employed by Mr. Justice Sebring in the Strickland case, supra, is here controlling, regardless of the contrary language, if any, appearing in the cases above cited.
It is my interpretation of the law that when a case comes to the Circuit Court for review of an administrative order of the Industrial Commission, the Circuit Judge is required to consider the case on the record and enter such order or judgment as accords with law and the facts. It does not reach the Circuit Court with a presumption of correctness of fact in favor of the administrative board, but the Circuit Judge should give to the findings of the Industrial Commission the same weight and consideration which a Chancellor should properly give to the findings of law and fact of a Master. However, on appeal from the Circuit Court to the Supreme Court a presumption exists as to the correctness of the Circuit Court's order and the rule of this Court is if there is in the record sufficient competent proof, absent error of law, the order appealed from must be affirmed. I therefore agree to the order of reversal.