Opinion
June 26, 1951.
Appeal from the Circuit Court, Alachua County, John A.H. Murphree, J.
Oxford Oxford, Lakeland, for appellant.
Macfarlane, Ferguson, Allison Kelly, Tampa, for appellee.
Affirmed.
SEBRING, C.J., and ADAMS and ROBERTS, JJ., concur.
CHAPMAN, J., concurring specially.
This is a workmen's compensation case. An order was first entered by the Florida Industrial Commission awarding claimant compensation for a period of 350 weeks. On appeal by the claimant to the Circuit Court of Polk County, Florida, the award was modified so as to require the carrier to compensate the claimant for permanent total disability for a period of not to exceed 500 weeks (instead of 350 weeks) under the provisions of (a) and (b) of Subsection (5) of Section 440.15, F.S.A. The order of the Circuit Court dated November 22, 1946, recited that the claimant had received multiple injuries at different dates of his employment and was permanently totally disabled and should be compensated under (a) and (b) of Subsection (5) of Section 440.15, F.S.A. On appeal here the order of the Circuit Court of Polk County dated November 22, 1946, was affirmed. See Food Machinery Corporation, Liberty Mutual Insurance Co., and Florida Industrial Commission v. Stanley, 159 Fla. 133, 31 So.2d 65.
It appears by the record that Dave Stanley later changed his residence to Alachua County, Florida. On November 11, 1949, the Liberty Mutual Insurance Company filed in the Circuit Court of Alachua County, Florida, its bill of complaint under the provisions of Section 87, F.S.A., against the claimant. Dave Stanley, and alleged that it had paid to the claimant for his injuries and disabilities a total sum of $5,000.00, and having fully performed and satisfied by payment the claimant's maximum compensation allowance as provided for in Subsection (13) of Section 440.20, F.S.A., it terminated payments to the claimant and in so doing had paid less than 500 weeks of compensation. The bill of complaint prays (1) that the court adjudicate the respective rights and status of the parties under the aforesaid provisions of the Workmen's Compensation Act; and (2) that a decree be entered construing and determining the rights and status of the parties under the final decree of the Circuit Court of Polk County, Florida, dated November 22, 1946, which was affirmed by this Court on appeal. See Food Machinery Corp., Liberty Mutual Insurance Co., et al. v. Stanley, 159 Fla. 133, 31 So.2d 65.
The answer of the claimant Stanley to the bill of complaint set out: (1) the Circuit Court of Alachua County was without jurisdiction of the cause and the parties, but the proper forum was the Circuit Court of Polk County, Florida; (2) the bill of complaint was a collateral attack on the final decree as entered by the Circuit Court of Polk County and affirmed on appeal by the Supreme Court of Florida; (3) the facts alleged in the bill of complaint were fully adjudicated by a court of competent jurisdiction and the carrier is now estopped to relitigate the matters placed at rest by the final decree of the Circuit Court of Polk County and the order of affirmance entered in the cause by the Supreme Court of Florida; (4) the carrier through counsel, filed in the Supreme Court of Florida its petition for a rehearing, which petition for rehearing was denied by the Supreme Court of Florida on July 7, 1947; the order denying a rehearing adjudicated the point of law now sought to be relitigated in the Circuit Court of Alachua County; (5) grounds 1, 2 and 3 of the petition for re-hearing as filed by counsel for the carrier are viz.:
"1. That the effect of the opinion of this Honorable Court in affirming the opinion and judgment of the Circuit Court, Tenth Judicial Circuit, in and for Polk County, Florida, is the establishment of the principle that a claimant under the Florida Workmen's Compensation Act is entitled to compensate for a limit of five hundred (500) weeks if he has sustained injuries prior to the injury causing permanent disability, even though all previous injuries were not permanent in nature, which principle is inconsistent with Section 440.15 (5) (b), Florida Statutes 1941, providing for weekly compensation not exceeding five hundred (500) weeks, in that this Section is to become operative if a permanent injury is sustained after a previous permanent injury in the employ of the same employer.
"2. That the effect of the opinion of this Honorable Court in affirming the opinion and judgment of the Circuit Court, Tenth Judicial Circuit, in and for Polk County, Florida, is the establishment of the principle that a claimant under the Florida Workmen's Compensation Act is entitled to compensation for a limit of five hundred (500) weeks if he has sustained injuries prior to the injury causing permanent disability, even though the Statute of Limitations has run on all previous injuries, which principle is inconsistent with Section 440.15(5) (b), Florida Statutes 1941, providing for weekly compensation not exceeding five hundred (500) weeks, in that this Section is to apply to cases in which an employee has two valid and existing claims for permanent injuries under said Act.
"3. That the effect of the opinion of this Honorable Court in affirming the opinion and judgment of the Circuit Court, Tenth Judicial Circuit, in and for Polk County, Florida, is to deny the employer and/or carrier their right to a determination of the extent of an employee as a basis for the payment of compensation said right being granted by Sections 440.25(7) and 440.20(8), Florida Statutes 1941."
(6) We affirmed on appeal here the order of the Circuit Court of Polk County awarding the claimant for permanent total disability the sum of $22.00 per week and for the period of five hundred weeks.
The Circuit Court of Alachua County, on final hearing, decree that the Liberty Mutual Insurance Company, the employer's carrier, during the period the claimant received his multiple injuries had paid the claimant the sum of $5,000.00 over and above medical services and upon claims as established by the order dated November 22, 1946, entered by the Circuit Court of Polk County for the multiple injuries sustained. The carrier, under the provisions of Section 440.23, F.S.A., had fully complied with and discharged all obligations under the Workmen's Compensation Law required to be performed and the plaintiff carrier was discharged from all further obligation and liability to the claimant. The claimant Stanley appealed.
Counsel for claimant-appellant contends that the final decree entered below is erroneous because: (1) the limitation of $5,000.00 additional to any benefits in the form of medical services and treatment referred to in Section 440.20(13), F.S.A., applies to single and not successive multiple injuries; (2) (a) and (b), Subsection (5) of Section 440.15, F.S.A., were and are, as intended by the Legislature, exceptions to the provisions of Section 440.20(13), F.S.A.; (3) the appellee cannot attack collaterally in the Circuit Court of Alachua County, Florida, the decree of the Circuit Court of Polk County, Florida, which on appeal was affirmed by this Court; (4) the several contentions of counsel for appellee as made in the court below are now res adjudicata and the several issues therein placed at rest by the holding in the case supra of the Supreme Court of Florida.
Counsel for appellee contends that (1) when Section 440.20(13) is considered and construed in the light of other pertinent provisions of the Workmen's Compensation Act, the conclusion is inescapable that the Legislature intended that the sum of $5,000.00, together with medical services and treatment, should be allowed for successive multiple injuries and no more; (2) that the legislative reference to five hundred weeks may be treated as surplusage and disregarded by the court, provided the maximum amount is paid prior to the running of the five hundred weeks; (3) the adjudication to the claimant by the Circuit Court of Polk County of the sum of $22.00 per week for 500 weeks approximates $12,000.00 and is not authorized by the provisions of the Act; (4) on the point in issue the decree of the Polk County Circuit Court is a mere brutum fulmen.
It is my conclusion that the order of the lower court should be affirmed.