No citing cases on record.
v.
ARTISAN WOODCRAFTERS, INC., and American Mutual Insurance Company
Lead Opinion
The Special Disability Trust Fund (Fund) appeals the final order of the deputy commissioner requiring the Fund to reimburse the employer, Artisan Woodcrafters, Inc., and its carrier for permanent partial disability payments to an employee in accordance with Section 440.49, Florida Statutes (1975). The deputy commissioner found that the prerequisites to reimbursement had been met. We reverse.
The issue on appeal is whether there is competent substantial evidence in the record to support the finding that the employer reached an informed conclusion that the injured employee’s pre-existing condition was or likely would be a hindrance or obstacle to employment.
The employee sustained a compensable injury to his left arm and left leg in 1971. He was given a rating of 15% permanent impairment of his left arm. In 1975 the employee sustained a second injury when he struck his right elbow, for which he received a permanent partial impairment of 15% of the right arm. The employee and carrier entered into a joint petition for lump sum settlement that included payment for permanent partial disability based on diminution of wage earning capacity over and above the 15% rating previously voluntarily paid. The employer and carrier filed for reimbursement from the Fund.
In the final order the deputy commissioner went to great lengths to articulate reasons why knowledge of the 1971 disability should be attributed to the employer at the time of the 1975 injury. We will concede knowledge by the employer, although not Subscribing to the theories expressed in the final order. The question is whether the employer, armed with knowledge of the prior injury, made an informed conclusion that the condition was permanent and was or likely would be a hindrance to employment, as required by Section 440.49(2)(f)(l), Florida Statutes (1975). The final order did not contain a specific finding of informed conclusion, and the record will not permit such a finding.
REVERSED.
MILLS, J., concurs. WENTWORTH, J., dissents with opinion.Dissent
dissenting.
Even assuming applicability of the 1974 statutory amendment to the employer who retained the impaired claimant in 1972, I would affirm.
The order and record would indicate to me that before claimant’s second accident in this employment the employer reached[*957] an “informed conclusion” that claimant’s permanent impairment was “likely to be a hindrance or obstacle to employment.” § 440.49(2)(f), Florida Statutes. While some employers might conceivably evidence a state of mind in some formal or definitive way when an impaired employee returns to work, that requirement seems to me to be highly artificial. The more usual and more reasonable situation will, I think, be that which is presented in this case, where the employer has acted with full knowledge of all the pertinent facts. This clearly fulfills the statute’s intent to reward an employer’s informed decision to employ or retain an impaired worker.
Because the employer here was a party to the first agreement for permanent disability compensation generated by arm impairment and other injuries; because this employer should be presumed to know the nature of claimant’s work in woodcraft and the likelihood of some hindrance in that employment from a permanent arm impairment; and because that forseeable hindrance has now occurred by merger of the injuries to each arm, I would affirm the deputy’s order for reimbursement.