ENRIQUE GUZMAN, APPELLANT,
v.
SURGE ELECTRIC, INC., AND UNITED STATES FIDELITY & GUARANTY COMPANY, APPELLEES

Fla. 1st DCA | 1980-03-11
No. QQ-442
ERVIN and SHAW, JJ., concur.
381 So. 2d 287 Florida District Court of Appeal, First District (1980) Caution
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Enrique Guzman appealed a workers' compensation order that awarded him permanent partial disability benefits based on physical impairment but found no loss of wage-earning capacity. The appellate court reversed the wage-earning capacity finding, holding that competent evidence established Guzman suffered a loss of wage-earning capacity due to his injuries restricting him to light electrical work.


Holding

The court affirmed the finding regarding when the physician submitted his final rating report (March 13, 1978) but reversed the finding that appellant had no loss of wage-earning capacity. The court held that appellant proved by competent substantial evidence that the accident resulted in some loss of wage-earning capacity, as his physical restrictions now limit him to light electrical work rather than the full range of heavy and light work he could previously perform.


Headnotes

[1] A judge of industrial claims may err in finding that a claimant failed to establish a loss of wage-earning capacity by competent, substantial evidence.

[2] A claimant's actual wages earned after an injury are an important factor, but not the sole factor, in determining loss of wage-earning capacity.

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Key Quotes

“The mere fact he apparently returned to work at increased wages is not dispositive on the issue of whether he sustained any loss of wage-earning capacity.”

Establishes that post-injury wage recovery does not conclusively determine wage-earning capacity loss

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Facts & Procedural History

Guzman, age 36, was employed as a heavy electrician at $6.00/hour when he fell off a scaffold on March 31, 1977, suffering severe left wrist and pelvi…

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

Appellant, Enrique Guzman, brings this appeal from a final workmen’s compensation order entered April 3, 1979, awarding appellant temporary total and permanent partial disability benefits, based on the finding appellant had suffered a 17% permanent partial disability to the body as a whole. The judge of industrial claims found appellant had suffered no loss of wage-earning capacity.

Appellant brings the following points on appeal:

1. Whether the judge erred in finding that appellant failed to establish by competent, substantial evidence that • he suffered a loss of wage-earning capacity.

2. Whether the judge erred in concluding that the initial treating physician, Dr. Piper, did not submit his rating report until March 13, 1978, in that the record reflects a rating report submitted to the carrier on September 1, 1977.

We affirm Point 2 but reverse Point 1. Appellant proved by competent substantial evidence that the compensable accident resulted in some loss of wage-earning capacity.

Appellant, aged 36 with a diploma from a foreign technical school, has a job history in electrical work.

On March 31, 1977, the date of accident, he was employed full-time performing heavy electrical work for appel-lee, Surge Electric, Inc., at the pay rate of $6.00 per hour. His work involved climbing ladders, and required the use of both hands. His accident occurred when he fell off a scaffold, resulting in severe fractures of his left wrist and pelvic bone. The treating orthopedic surgeon, Dr. Piper, felt appellant could return to work by May 31, 1977. The doctor initially submitted a rating report on September 1, 1977, reporting that appellant had reached maximum medical improvement on August 31, 1977, with a 25% permanent impairment of the left upper extremity. He also noted that appellant’s left wrist could markedly improve with further surgery. Reevaluating appellant on March 13, 1978, Dr. Piper still believed that appellant reached maximum medical improvement on August 31, 1977.

However, bn reevaluation of appellant’s wrist condition, he opined appellant had only a 20% permanent impairment of the left upper extremity, instead of the 25% impairment figure noted previously. Dr. Piper felt appellant had progressed much more than originally anticipated, and surgery was not required at the present time. In explanation of the earlier, higher impairment rating, Dr. Piper testified a mix-up in his records also contributed to his reevaluation.

Appellant attempted to return to work on May 31, 1977, but his employer had no work available at that time. Rehired by the employer on July 1, 1977, appellant’s pay was temporarily increased to $11.25 per hour, because his employer assigned him to a government contract job, and had to pay him the prevailing government wage standard. Appellant could not do the heavy jobs he had previously done, but otherwise performed essentially the same work. After working without problems for several months, he found another full-time job as electrician and mechanic with a different employer. His pay rate for this,job was the prevailing wage of $7.50 per hour, and this job required only light electrical work.

Appellant testified he would probably be making more than his present wages had he not been physically restricted to light electrical work. Few opportunities existed for light electrical jobs within his physical capabilities. Appellant still has difficulty lifting with his injured wrist and experiences thigh pain after eight hours of work. Dr. Piper testified appellant’s wrist condition is progressive, so that further surgery is a virtual certainty, and further arthritic degeneration of the wrist will occur. On Point 2, we affirm the judge’s order. The parties do not discuss the significance of this point.

However, competent, substantial evidence supports the judge’s finding that “appellant reached maximum medical improvement on August 31, 1977, although Dr. Piper did not submit his rating report until March 13, 1978.” Dr. Piper consistently opined that appellant reached maximum medical improvement on that date, in both his narrative reports of September 1, 1977, and March 13, 1978. But the evidence shows that Dr. Piper gave inconsistent ratings regarding appellant’s extent of permanent impairment. Specifically, he revised the first report’s 25% impairment rating in the later report of March 13, 1978, which gave a lower 20% permanent impairment rating. This reevaluation was justifiably based upon his opinion that appellant’s permanent impairment was less than originally anticipated.

Thus, the judge correctly found that Dr. Piper did not submit his rating report until March 13, 1978.

The record shows Dr. Piper did not submit his final evaluation of the extent of permanent impairment until that date.

On Point 1, however, we reverse the judge’s finding that “claimant has failed to establish by competent, substantial evidence that he suffers a loss of wage-earning capacity.” The record plainly shows appellant’s industrial accident did result in some loss of wage-earning capacity. His physical condition as a result of injuries from that accident has restricted him to a more narrow range of electrical jobs than he once could perform. It is apparent that he now can no longer perform heavy electrical work, and will remain limited to only light electrical jobs, such as his present job. Thus, he is effectively precluded from finding any better paying heavy electrical work, and from taking advantage of the full range of job opportunities for both heavy and light electrical work.

The evidence was neither competent nor substantial to sustain the judge’s finding appellant suffered no loss of wage-earning capacity. The mere fact he apparently returned to work at increased wages is not dispositive on the issue of whether he sustained any loss of wage-earning capacity. Kurtz v. Wall, 182 So. 2d 618 (Fla.1966). As the court stated in Walker v. Electronic Products & Engineering Co., 248 So. 2d 161 (Fla.1971), the actual wages earned by a claimant after his injury are an important factor for determining loss of wage-earning capacity, but certainly not the sole factor.

Accordingly, we reverse that portion of the order finding no loss of wage-earning capacity. The judge of industrial claims has failed to consider the relevant criteria from Walker, supra, and to determine the extent of appellant’s loss of wage-earning capacity.

Consequently, the judge of industrial claims erred by failing to make an award according to whichever of appellant’s disabilities is greater: his disability based on physical impairment, or his disability based on diminution of wage-earning capacity. § 440.15(3)(u), Florida Statutes (1977).

The order is hereby reversed in part and the cause remanded for entry of an order consistent with our opinion.

ERVIN and SHAW, JJ., concur.


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Cited By

  • Lake Cnty. Comm'rs & U. S. Fid. & Guar. Co. v. Walburn, 409 So. 2d 153 (Fla. 1st DCA 1982)
    …. .. ” 2 Larson, The Law of Workmen’s Compensation, § 57.61 at 10-164.90. Restated, the requisite causal relationship is established if the compensable injury breaks or alters the claimant’s pattern of employment. See Guzman v. Surge Electric, Inc., 381 So. 2d 287 (Fla. 1st DCA 1980). Additionally, a worker may be compensated for the aggravation of an injury because of economic factors. United States Sugar Corporation v. Hayes, 407 So. 2d 1079 (Fla. 1st DCA, 1982). [*156] In the instant case, the deputy commi…
  • Superior Pontiac and Lynn Underwriting v. Hearn, 458 So. 2d 1197 (Fla. 1st DCA 1984)
    …DCA 1982). Accordingly, the order appealed from is REVERSED. BOOTH and THOMPSON, JJ., concur. . Hearn was paid partially on a commission basis, the commission depending on the value of the repair job undertaken. . Guzman v. Surge Electric, Inc., 381 So. 2d 287 (Fla. 1st DCA 1980), cited by Hearn in support of the deputy’s ruling, is distinguishable. In Guzman, the claimant, who was injured on the job, returned to work with the same employer subsequent to his injury. However, the claimant was not able to p…
  • Gomez v. Neckwear, 424 So. 2d 106 (Fla. 1st DCA 1982)
    …d for reconsideration, but in passing caution against placing undue emphasis on the fact that the claimant is earning more money at her current employment than she was earning at the time of her industrial injury. See Guzman v. Surge Electric, Inc., 381 So. 2d 287 (Fla. 1st DCA 1980). Moreover, the deputy should consider whether the claimant’s current employment falls within the “odd-lot” doctrine [*111] recently enunciated in Lister v. Walker, 409 So. 2d 1153 (Fla. 1st DCA 1982). BOOTH and LARRY G. SMITH, J…

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