FONTAINEBLEAU HOTEL AND COSMOPOLITAN MUTUAL INSURANCE COMPANY, PETITIONERS, CROSS-RESPONDENTS,
v.
VIRGINIA PARTENHEIMER AND INDUSTRIAL RELATIONS COMMISSION, RESPONDENTS, CROSS-PETITIONERS
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The Florida Supreme Court reviewed an Industrial Relations Commission order requiring reconsideration of a worker's disability rating. The Court affirmed the Commission's order for reconsideration but rejected the Commission's suggestion that if the worker was not permanently totally disabled, she must revert to her original 25% rating, holding instead that the modified 50% rating was supported by substantial evidence of a mistake in fact.
Upon reconsideration, if a determination of permanent total disability is not justified, the Judge of Industrial Claims is free to adhere to the modified 50% award if it is supported by competent, substantial evidence of a mistake in fact regarding the claimant's rehabilitation potential.
[1] A finding of permanent total disability may be appropriate even if a claimant can perform some work.
[2] A modification of a workers' compensation award may be based on a mistake of fact regarding the claimant's rehabilitative potential.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“even though a claimant may be able to perform some work, a finding of total permanent disability might still obtain”
Establishes the legal standard that permanent total disability can be found despite some residual work capacity
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Join FLexlaw to unlock all legal intelligenceVirginia Partenheimer initially received a 25% permanent partial disability rating for her left leg with the expectation she would seek rehabilitative…
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Both the claimant and the employer/carrier seek review of an Industrial Relations Commission order directing that the Judge of Industrial Claims give further consideration to claimant’s status as being either permanently partially disabled as to her left leg, or permanently totally disabled. With the exception of one point raised by claimant, we think the arguments raised by the parties are without merit, and the petitions should be denied.
Initially, the claimant was awarded a rating of 25% permanent partial disability of the left leg. The award was made with the understanding that she should seek rehabilitative job training. In the course of subsequent training, it was discovered that her condition resulted in the effective loss of the use of her leg, and her practical ability to either train for new employment or secure a job was cast into doubt. A claim for modification resulted in an increased award of 50% permanent partial disability with loss of the use of the leg. On review, the Commission reversed and ordered that the Judge of Industrial Claims reconsider the claimant’s ability to compete for employment. Citing Port Everglades Terminal Co. v. Canty, 120 So.2d 596 (Fla.1960), the Commission noted that even though a claimant may be able to perform some work, a finding of total permanent disability might still obtain.
While agreeing with the Commission that a reconsideration is appropriate, we cannot follow the Commission’s further comment that, “[I]f she is not a permanently totally disabled, her rating would necessarily remain as originally found, i. e., 25 percent permanent partial disability of the leg.” The modification of the original award under Fla.Stat. § 440.28, F.S.A., was based upon a mistake in fact: the mistaken extent to which it was thought that claimant could be effectively rehabilitated for the job market. Claimant correctly asserts that this rating is supported by the requisite quality of competent, substantial evidence. Therefore, the Judge of Industrial Claims is free to adhere to that award if, upon reconsideration, a determination of permanent total disability is not justified.
The petition of the employer/carrier is denied. The cross-petition of the claimant is denied with the point of exception noted above, and accordingly the Order of the Judge of Industrial Claims is reinstated to the extent of the point of exception without oral argument.
It is so ordered.
CARLTON, Acting C. J., and ADKINS, BOYD, McCAIN and DEKLE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Partenheimer v. Fontainebleau Hotel, 291 So. 2d 1 (Fla. 1974)…s quashed, and the cause remanded with instructions to reinstate the May 11, 1972 Order of the Judge of Industrial Claims awarding claimant permanent total disability. It is so ordered. CARLTON, C. J., and ROBERTS, ERVIN and DEKLE, JJ., concur. . 253 So. 2d 1 (Fla.1971). . Id. at 2. . 279 So. 2d 281 (Fla.1973). . 244 So. 2d 417 (Fla.1971). . 223 So. 2d 33 (Fla.1969). . 55 So. 2d 741 (Fla.1951). . 265 So. 2d 8 (Fla.1972). . 251 So. 2d 260 (Fla.1971). . 234 So. 2d 99 (Fla.1970). . 120 So. 2d 596 (…
Authorities Cited
- Port Everglades Terminal Co., Inc. v. Allan Canty & the Fla. Indus. Comm'n, 120 So. 2d 596 (Fla. 1960)