Opinion
No. 33515.
March 3, 1965. Rehearing Denied April 7, 1965.
Petition from the Florida Industrial Commission.
Ira J. Druckman, Miami, for petitioner.
Eugene E. Williams, Miami, Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for respondents.
The petitioner was injured in the course of her employment when a drill she was operating pierced her left hand at the base of the third finger enervating that finger and the fourth one. Compensation for temporary total disability, as well as medical care, was furnished for seven months, after which the employee was discharged, 6 November 1961, having reached maximum medical improvement with 20% permanent partial disability. This was recited in the order of the deputy commissioner of 23 May 1962.
The deputy commissioner found in that order that the claimant with "adequate perseverance" could regain partial use of her hand reducing the loss of use of the hand to thirty-five per cent.
The matter was next heard 26 March 1963 on a claim which was described by the deputy as one "in the nature of a Petition for Modification." The claimant asserted that she had undergone such a change of condition that she totally lost the use of her arm for which she was entitled to compensation, or that she should be granted "a body as a whole disability rating," or compensation for permanent total disability because of destruction of her wage-earning capacity. The employer-carrier said that the employee had suffered no change of condition hence was entitled to no further benefits.
The deputy concluded that psychogenic factors had resulted in a loss of use of her hand to the extent of sixty-five per cent. This order was entered 17 April 1963.
All parties were unhappy about the outcome of the hearings before the deputy commissioner so the employer and carrier obtained a review by the Full Commission contending that the award was based on cumulative and subjective testimony which was not sufficient to show a change of condition. On the other hand, the employee argued by cross-petition that error was committed because the deputy did not determine either that the claimant suffered loss of total use of her hand or complete loss of earning capacity.
The Full Commission decided that the evidence was not sufficient to substantiate the employee's position that there had been a change of condition, a burden she assumed, Nix v. Merrill-Stevens Dry Dock and Repair Co., Fla.App., 107 So.2d 616, since her own doctor said he could not testify to such change. Basically, noted the Commission, the only new factor was the subjective complaint of pain. It was observed that she had a "low threshold of pain" and as a consequence sheltered her arm against her stomach for fear of striking a solid object.
Actually, as we understand the situation, the asserted change arises because the deputy found that she would, or could, regain the use of her hand but did not. This is a sort of negative approach to the remedy provided by F.S.A. Sec. 440.28 of Workmen's Compensation Law. In other words, it was not so much that her condition got worse but that it did not get better. Furthermore, the testimony seems to indicate that the condition of the arm did not improve because the claimant was so persistent in failure to use it. And the deputy, himself, commented that "the testimony leads to the reasonable conclusion that the psychogenic factors involved have produced a steady deterioration of the Claimant's ability to use her left hand."
We cannot follow the reasoning that by failing to improve the condition of her hand, a change in condition resulted from lack of improvement which would bring to her the remedy provided by Sec. 440.28, supra.
We think the Full Commission's opinion was sound and the order of reversal is, therefore, affirmed and the cross-petition for certiorari is discharged.
ROBERTS, THORNAL and O'CONNELL, JJ., concur.
DREW, C.J., dissents with opinion.
In his original compensation order of May 23, 1962, the deputy found "* * * it is the finding of the undersigned Deputy Commissioner that with adequate perseverance, the Claimant can regain partial use of her hand, resulting in only, as stated, 35% loss of use." (Emphasis supplied.) Eight months later, petition for modification was filed and, after testimony and hearing, the same deputy concluded that claimant had undergone a change of condition to the extent that she was then suffering a 65% loss in the use of her left hand instead of the original total 35%. I think this latter conclusion of the deputy is amply supported by the record. While the matter of pain might seem trivial and it might be thought that these psychogenic factors are inconsequential, Dr. Sterling H. Huntington in his report of March 21, 1963, which was before the deputy, stated "There is little doubt that this woman has suffered severe injury to her hand, especially to her ring finger and to the palmar fascia and the flexor tendon sheath with resultant trauma to the Median nerve." In the original order of the deputy in which he made the award of 35% he bottomed his conclusion on the assumption the claimant could regain partial use of her hand with adequate perseverance. A year later he reached the conclusion that the premise upon which he reached his result in the first hearing was wrong and awarded her a rating of 65%.
A careful examination of this record convinces me that the deputy thought in the beginning that this claimant would probably regain substantially a good part of the use of her hand and resolved the question of percentage of disability in favor of the carrier. Subsequent events did not bear out his original assumption and he proceeded to correct his mistakes.
Modification provisions are the safety valve of workmen's compensation acts. Such statutes are fair to both employer and employee. In tort cases a judgment ends the question of the amount of damages and extent of injuries but these statutes fix a two year period to re-evaluate the original findings and correct mistakes of fact and provide for change of conditions. The objective is to compensate the employee for whatever subsequent events (within the prescribed periods) establish is the real extent of his injuries — whether more or less than that originally determined. Without such statutes no careful lawyer could advise either the claimant or the employer to accept or offer an award until the passage of time had established the true extent of the disability and this would defeat the very purpose of the compensation laws. These are basically administrative proceedings, devised to furnish prompt payment for injuries to a class of people usually unable to finance prolonged absences from employment. This employee should not be penalized because the deputy — in his commendable desire to be fair to all parties — erred in his conclusion that the passage of time would bring about an improvement in claimant's condition and enable this employee to again resume at least a substantial use of her hand and arm. I think this is the result of rejecting his award of 65% and I therefore must respectfully dissent.