397 So. 2d 1 | Fla. Dist. Ct. App. | 1981
The Trust Fund argues there is insufficient evidence to support the deputy commissioner’s order that the employer/carrier be reimbursed from the fund for money the carrier had paid on a workers’ compensation claim. We agree and reverse.
Section 440.49 provides that an employer who hires a person with a pre-existing permanent impairment may be entitled to reimbursement from the Trust Fund when the new injury merges with the pre-exist-ing condition to cause a greater disability than would have resulted from the second injury alone. Accordingly, Section 440.-49(2)(f) provides that no reimbursement shall be allowed unless “it is established that the employer reached an informed conclusion prior to the occurrence of the subsequent injury or occupational disease that the pre-existing physical condition is permanent and is, or is likely to be, a hindrance or obstacle to employment.” The record does not establish that the employer in this case reached an informed conclusion that the claimant’s pre-existing physical condition was permanent.
The only evidence relating to the employer’s knowledge of a prior injury was an affidavit by the employer, which stated:
Prior to these injuries in 1977, this man had injuries to his neck of which I was aware of at the time (sic). I allowed him to continue working for the company despite being aware of his pre-existing problems with his neck. I was aware of his pre-existing problem in his neck prior to his accident of 1977 while working for my company (sic).
It is clear from this affidavit that the employer failed to meet the requirements of Section 440.49(2)(f).
Therefore, the order of the deputy commissioner is REVERSED.
