CLEMENT DOMINGUIZ, APPELLANT,
v.
BROWARD COUNTY BOARD OF COUNTY COMMISSIONERS, APPELLEE

Fla. 1st DCA | 1981-03-13
No. WW-165
McCORD and SMITH, JJ„ and LILES, WOODIE A. (Retired) Associate Judge, concur.
395 So. 2d 267 Florida District Court of Appeal, First District (1981)

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Synopsis

This workers' compensation appeal addresses whether a claimant injured in a workplace accident should receive benefits for loss of wage-earning capacity beyond his anatomically-based disability rating, and whether he should receive scheduled disability benefits instead. The court affirmed denial of excess wage-loss benefits but reversed on the issue of scheduled disability ratings, requiring remand for recomputation.


Holding

The court affirmed the denial of benefits for loss of wage-earning capacity beyond the 7.5% anatomic rating, finding the claimant's actual wage increase and continued full-time work supported the determination. However, the court reversed regarding scheduled disability benefits, holding that the claimant should receive whichever remedy was more favorable—comparing the body-as-a-whole rating against the combined scheduled disability ratings for both knees.


Headnotes

[1] An actual increase in wages is not determinative of the issue of loss of wage earning capacity in workers' compensation cases.

[2] A deputy commissioner's determination of loss of wage earning capacity must be supported by competent substantial evidence in the record.

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Key Quotes

“It is true that an actual increase in wages is not determinative of the issue of loss of wage earning capacity”

Establishes the legal principle that wage increases alone do not preclude findings of wage-loss capacity, though other evidence may support denial.

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Facts & Procedural History

Claimant Dominguez twisted and injured both knees on June 29, 1977, while working as an inspector at a Broward County motor vehicle inspection station…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal from a workers’ compensation order denying a claim for benefits for permanent partial disability in excess of the rating of llh% permanent partial disability of the body as a whole accepted by the employer/carrier. Claimant twisted and injured his knees on June 29, 1977, while employed as an inspector at the Broward County Motor Vehicle Inspection Station. Eventually, claimant returned to work for the same employer, although he was placed on special duty whereby he did not have to move around as much as he did in his pre-accident position. As of the date of the hearing on the claim, claimant was working for the same employer and actually earning more than he had earned at the time of the accident. Several physicians examined claimant and their reports were received in evidence by the deputy commissioner. Dr. Silver-stein was of the opinion that claimant had incurred internal derangement in both knees and as a result had a 10% permanent partial disability of the right lower extremity and a 5% permanent partial disability of the left lower extremity. He also expressed the disability resulting from the knee injuries in terms of disability to the body as a whole, and opined that claimant had a 7%% permanent partial disability to the body as a whole. In the opinion of Dr. Jones, claimant had a 15% permanent partial disability of the right knee, but no disability of the left knee.

The claim was for loss of wage earning capacity in excess of the 7V2% anatomically based on the body as a whole rating which had been accepted by the employer/carrier. Alternatively, a claim was made for an award based on the physician’s scheduled disability ratings. The claim was denied.

As to appellant’s first point on appeal, that the deputy commissioner erred in failing to award benefits for loss of wage earning capacity in excess of the 7V2% anatomic impairment rating, we affirm. It is true that an actual increase in wages is not determinative of the issue of loss of wage earning capacity, Guzman v. Surge Electric, Inc., 381 So. 2d 287 (Fla. 1st DCA 1980). In the instant case, however, the deputy commissioner also based his determination on the finding that claimant now works mostly on his feet for eight hours a day, forty hours a week. This finding is supported in the record by competent substantial evidence.

We do find merit in appellant’s second point. He should have been awarded the more favorable of remedies as between the unscheduled and scheduled disability ratings. Farrens Tree Surgeons v. Winkles, 334 So. 2d 569 (Fla.1976); C. F. Chemicals, Inc. v. Elwood, IRC Order 2-3712 (February 22,1979). Any combination of scheduled disability ratings chosen by the deputy commissioner would have resulted in appellant receiving more weeks of compensation than he would receive pursuant to the TWX> permanent partial disability of the body as a whole rating. The disability ratings of the left and right knees given by Dr. Silverstein would have yielded a total of thirty weeks of compensation under the schedule, as would Dr. Jones’ rating of the right knee. Another possibility would be an award taking into account both the rating by Dr. Jones of a 15% permanent partial disability of the right knee and the rating by Dr. Silverstein of a 5% permanent partial disability of the left knee. This combination would yield a total of forty weeks of compensation under the schedule. On this point, therefore, we reverse and remand to the deputy commissioner for recomputation of the permanent partial disability benefits due, with the more favorable of remedies, as between scheduled and unscheduled disability ratings, to be awarded.

McCORD and SMITH, JJ„ and LILES, WOODIE A. (Retired) Associate Judge, concur.


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