Opinion
No. 34113.
June 30, 1965. Rehearing Denied July 27, 1965.
Petition for review from the Industrial Commission.
J.B. Hodges, Lake City, for petitioner.
Lloyd C. Leemis of Boyd, Jenerette Leemis, Jacksonville, Patrick H. Mears, Tallahassee, and J. Franklin Garner, Lakeland, for respondents.
This cause previously came before the court upon petition for certiorari filed by the claimant when the full commission reversed the order of the deputy commissioner awarding him compensation and dismissed the claim. After oral argument and examination of the record, we agreed that the order of the deputy was deficient in specific findings of fact and therefore should have been reversed, but remanded to the deputy commissioner for reconsideration and findings consistent with facts and prior holdings. Accordingly, the order of the commission was quashed with directions, Fla., 162 So.2d 519.
The case recurs by petition for certiorari from the second order in the cause filed by the full commission which again reversed the compensation award made by the deputy commissioner and dismissed the claim.
A further study of the record presently before us discloses that the deputy has now made adequate findings based upon evidence sufficient to meet lawful requirements. We, therefore, quash the order of the full commission and direct that the order of the deputy commissioner be reinstated.
It is so ordered.
ROBERTS, Acting C.J., and THORNAL, O'CONNELL and ERVIN, JJ., concur.
CALDWELL, J., dissents with Opinion.
I would sustain the order of the Full Commission dismissing the claim. The record fails to show there was an accident of any kind. The petitioner's doctor testified "it is impossible for me to correlate a certain injury to this bulge because there was no definite herniation * * *."
The claim fails to meet the requirements of Florida Statutes § 440.15(6), F.S.A., relating to hernias. The majority opinion is in conflict with Frohman Gear Co. v. Fellows, 149 So.2d 557 (Fla. 1963).
"HERNIA. — In all claims for compensation for hernia resulting from injury by an accident arising out of and in the course of his employment it must be definitely proved to the satisfaction of the commission:
(a) That there was an injury resulting in hernia.
(b) That the hernia appeared suddenly.
(c) That it was accompanied by pain.
(d) That the hernia immediately followed an accident.
(e) That the hernia did not exist prior to the accident for which compensation is claimed."
In Garcia v. Continental Vending Machine Corporation, 176 So.2d 329, opinion filed June 2, 1965, this Court held:
"In Frohman Gear Company v. Fellows, 149 So.2d 557, we again emphasized the essentialities of definite proof of the five statutory factual requirements.
"In the absence of proof of any one of these five essential prerequisites, recovery under the hernia section cannot be allowed. In hernia cases, therefore, it is the responsibility of the deputy, in the first instance, to require proof of these five essential facts as a condition to an award. Similarly, in view of the significance of the deputy's conclusions, his compensation order should clearly set forth his findings regarding each of the five statutory prerequisites. Without such findings neither the Full Commission nor this Court is in a position to review the compensation order. We repeat, it is not our function to explore the record and construct factual findings at the appellate level. This is the initial responsibility of the deputy who sees and hears the witnesses and who is charged by the statute to include his findings in his order.
"The instant order is clearly deficient in this essential respect. While the deputy concludes, generally, that the manner in which the claimant was injured was compensable under the hernia section, he failed to particularize his findings regarding each of the five statutory essentials. As a result, the merits of his compensation award could not be properly reviewed by the Full Commission nor can it be reviewed by us."
If the deputy had attempted in his order to satisfy the five statutory prerequisites of the hernia award, the noncompensable nature of this claim would have become as apparent to him as it was to the Full Commission. I think this case illustrates the error the hernia statute was designed to prevent. The record establishes that claimant, who had a congenital weakness and prior hernias, suffered a doubtful herniation but fails to establish a causal relationship between the alleged injury and an accident. There is no evidence as to when the alleged hernia appeared. The statute requires that it must have appeared suddenly and immediately after the accident. The fifth requirement of the statute, "that the hernia did not exist prior to the accident," is not proved. In fact, all the evidence on this point is to the contrary.
The order of the Full Commission should be affirmed.