City of Hialeah v. Warner, 30828
| Decision Date | 05 April 1961 |
| Docket Number | No. 30828,30828 |
| Citation | 128 So.2d 611 |
| Parties | CITY OF HIALEAH and The Aetna Casualty and Surety Company, Petitioners, v. Douglas M. WARNER and Florida Industrial Commission, Respondents. |
| Court | Florida Supreme Court |
Blackwell, Walker & Gray, Miami, for petitioners.
Hubert G. Roberts, Hialeah, Burnis T. Coleman and Paul E. Speh, Tallahassee, for respondents.
This is a petition for writ of certiorari to the Florida Industrial Commission to review a compensation order of the Commission affirming an order entered by a deputy commissioner, concluding that under the provisions of Section 440.02(9), Florida Statutes, F.S.A., disability is measured by 'a diminution of earning capacity'.
The facts in regard to the original injury are not disputed. The claimant, Warner, was a police detective employed by the petitioner, City of Hialeah, who sustained a compensable injury to his neck and back when involved in an automobile accident on February 20, 1958. In ten days he resumed light work for several weeks then returned to normal duties. His medical treatment terminated in April of 1958.
More than a year later, in June of 1959, a claim was filed seeking compensation based on this same injury. Claimant contended that he suffered back pain and stiffness in the mornings; that he had been forced to sell his striping business at no profit and had made less from his business in 1958 than he did in 1957. His contention is that the injury in February 1958 prohibited him from engaging in the hard physical labor required by the striping business, that he had had to sell the business, and that his overall income was and will in the future be reduced because of his inability to engage in such physical labor. The deputy listened to the disputed testimony in regard to the effect of the injury on the present complaints of claimant; decided that the injury caused the backaches and stiffness which limited claimant's physical activities; reviewed the total income of Mr. Warner from his private business and from his job with the petitioner; and concluded that the injury suffered by claimant while at work in the employment of petitioner limited his capacity to earn by strenuous physical labor money in employment that he could have earned prior to his injury; and thereupon awarded claimant 20% permanent partial disability compensation for loss of earning capacity.
Petitioner contends that claimant suffered no decrease in his wage-earning capacity, and that indeed his wages in the same job were increased because of a raise in salary; that earnings from his private business could not be included in considering his average earnings, citing the holding in Wilson v. City of Haines City, Fla.App., 97 So.2d 208; and that the deputy and the Commission erred in interpreting Section 440.02(9) to mean 'a diminution in earning capacity.'
In this case, as in other disputes under our Act, we recognize the rule of liberal construction in favor of the injured worker, but conclude that the principle cannot be invoked to vary the literal terms of our law.
The controlling statute provides a definition for disability as follows:
'Sec. 440.02(9): 'Disabil...
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...to carry on, in any field of endeavor, work which will equal or surpass income earned at the time of the injury. City of Hialeah v. Warner, 128 So.2d 611 (Fla.1961).1 While I conclude, upon a review of the record, that the JCC's findings that the hernia condition was "no worse," and that th......
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...v. Romano, 159 Fla. 1, 30 So.2d 495 (1947); Clark v. Western Knapp Engineering Co., 190 So.2d 334 (Fla.1966); and City of Hialeah v. Warner, 128 So.2d 611 (Fla.1961).7 Parenthetically, we feel that it is fair to observe that the duration and amount of wage loss claims of any injured employe......
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