MILLO TRASH SERVICE CO. AND FIREMAN'S FUND AMERICAN INSURANCE CO., APPELLANTS,
v.
JULIAN MILLO, APPELLEE
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An employer and its insurance carrier appealed an order awarding wage-loss workers' compensation benefits to the president and sole shareholder of a closely held garbage collection company who sustained a hand injury. The court affirmed, holding that the claimant's reduced post-injury wages fairly compensated the reduced services he could perform and that corporate profits need not be added to wages in calculating wage loss.
The court held that the $200 weekly wage was fair remuneration for the reduced services the claimant could perform post-injury, the deputy did not err in finding the claimant unable to perform his pre-injury duties, and corporate profits need not be added to wages in determining wage loss even though the claimant controlled the corporation.
[1] A finding that an injured claimant is unable to perform the same duties as before an accident is supported by competent substantial evidence if such evidence exists, even…
[2] A claimant's ability to create a new position for himself after an injury does not preclude wage-loss benefits if the new position involves duties of lesser value and rem…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although there was conflicting evidence, the deputy's finding that the claimant was not able to perform the same duties as before the accident is supported by competent substantial evidence.”
Establishes that the claimant met his burden of proving inability to perform pre-injury work despite his control of the company.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe 57-year-old claimant founded Millo Trash Service in 1969 and suffered a non-dominant hand injury on November 2, 1981, reaching maximum medical imp…
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NIMMONS, Judge.
The employer/carrier appeal from an order awarding wage-loss benefits to the claimant who was president and sole shareholder of the employer, a closely held corporation engaged in a garbage collection business. We affirm.
This 57-year-old claimant came to this country in 1969 and started Millo Trash Service six months later. He sustained an injury to his non-dominant hand on November 2, 1981. A year later, he reached maximum medical improvement with a 9% body-as-whole permanent impairment. Before his injury, the claimant drove a 13-gear stick shift, 19-ton truck. He also had to push half-ton garbage tanks and was the mechanic for three garbage trucks. Although there was conflicting evidence, the deputy’s finding that the claimant was not able to perform the same duties as before the accident is supported by competent substantial evidence. The E/C’s attack on that ground is therefore unavailing.
In view of the restrictions imposed by his permanent injury, the claimant, in effect, created a job for himself which basically involved answering the telephone, purchasing materials and supervising the employees, for which he was paid the sum of $200 per week. His average weekly wage prior to the accident was $430. The E/C asserts that the claimant, being in control of the corporation, established a salary level in an amount appreciably less than the value of his services and that during the nine-month period for which the claimant was seeking wage loss, the corporation prospered, showing substantially greater profits than previously, which profits, of course, inured to the claimant’s pecuniary benefit. Thus, the E/C argues, the claimant voluntarily limited his income.1
The deputy found that the $200 weekly wage paid to the claimant after his return to work was fair remuneration for the work performed by the claimant. The record contains evidence supportive of such conclusion. Moreover, although the record is not entirely clear as to all of the duties performed by the claimant before the injury and those performed after his return to work, the record is certainly susceptible to the finding that the services performed after his return to work were appreciably different than those performed pre-injury and of less value to the company. Further, the deputy did not err in refusing to add the corporate profits to the $200 per week wages in determining wage loss. Cf. H. G. Boddiford Painting Contractors, Inc. v. Boddiford, 426 So. 2d 1243 (Fla. 1st DCA 1983).
AFFIRMED.
WENTWORTH and ZEHMER, JJ., concur. . It should be noted that the E/C has not contended that the claimant was obligated to seek more remunerative employment elsewhere. We have, therefore, not considered any such contention in reaching our decision.
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Custom Paints & Cigna Ins. Co. v. Philbrick, 490 So. 2d 1352 (Fla. 1st DCA 1986)…ssioner for the purpose of reconsideration of the claim for this period, including the receipt of further evidence at his discretion. REVERSED and REMANDED with directions. JOANOS and WIGGINTON, JJ., concur. . In Millo Trash Service Co. v. Millo, 473 So. 2d 839 (Fla. 1st DCA 1985), citing H.G. Boddiford Painting Cons. v. Boddiford, 426 So. 2d 1243 (Fla. 1st DCA 1983), we held that business profits are not earnings for the purpose of determining wage loss. Conversely, it follows that neither can business lo…
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Tuller Corp. & United States Fid. & Guar. Co. v. Durwood Outlaw, 489 So. 2d 1246 (Fla. 1st DCA 1986)…PER CURIAM. AFFIRMED. See Millo Trash Service Co. v. Millo, 473 So. 2d 839 (Fla. 1st DCA 1985) citing H.G. Boddiford Painting Contractors, Inc. v. Boddiford, 426 So. 2d 1243 (Fla. 1st DCA 1983). SMITH, JOANOS and WIGGINTON, JJ., concur.…
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Perini Corp. & Aetna Cas. & Sur. Co. v. Licata, 548 So. 2d 815 (Fla. 1st DCA 1989)…business purpose for the corporate decision against distribution of profits, or the propriety of the conclusion in the order that “the corporate profits are not to be added to the claimant’s actual earnings,” citing Millo Trash Service Co. v. Millo, 473 So. 2d 839 (Fla. 1st DCA 1985). The omission in this case, however, was the failure to make a determination, as was done in Millo, as to what amount constituted a “fair remuneration for the work performed by the claimant. ” 473 So. 2d at 840. Claimant’s labor…
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- H.G. Boddiford Painting Contractors, Inc. v. Boddiford, 426 So. 2d 1243 (Fla. 1st DCA 1983)