Florida Ins. Guar. Ass'n v. Valez, BQ-252
| Decision Date | 20 October 1987 |
| Docket Number | No. BQ-252,BQ-252 |
| Parties | FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. Ismael VALEZ, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Teitler of Walton, Lantaff, Schroeder & Carson, Miami, for appellant.
Mark L. Zientz of Williams & Zientz, Coral Gables, for appellee.
This workers' compensation appeal involves the issue of whether the deputy commissioner (dc) erred in directing the insurance carrier (carrier) to adjust the minor-employee's average weekly wage (AWW) in the sum of $384.84, pursuant to the method provided in Section 440.14(1)(e), Florida Statutes (1979), 1 as to the minor's claim for temporary total disability (TTD). We agree that the dc erred in so adjusting the claimant's AWW, and reverse.
On May 12, 1980, at the age of fourteen, claimant injured his right hand while operating an electric table saw. From the date of the accident, through March 1982, he underwent nineteen operations, resulting in the amputation of his right forefinger and part of his right thumb. The claimant's physician opined that the claimant had reached maximum medical improvement (MMI) as of May 19, 1982, with a thirty-five percent permanent partial impairment (PPI) to the body as a whole. Claimant obtained a variety of jobs from 1983 through 1986. In 1984, he was employed as a salesman selling electronic beepers, for which he received both salary and commission, or a minimum monthly income of $1,500.
Although the carrier had provided claimant TTD benefits from the date of the accident until the date of MMI, or May 19, 1982, based on the statutory method provided in section 440.14(1)(a) for determining claimant's AWW, claimant sought additional compensation benefits during that period pursuant to the procedure authorized by section 440.14(1)(e). The dc agreed with claimant that subsection (1)(e) was the correct means for determining the claimant's AWW, and arrived at the figure of $384.84 as the appropriate AWW, based upon the claimant's actual earnings received by him from selling beepers, beginning in 1984, and concluded that such earnings reflected probable increases in the minor's income during the period of his claimed TTD.
The carrier appealed, 2 contending that the dc erred in relying on an AWW that the claimant had obtained nearly two years and three jobs following the cessation of time for which the claimant requested TTD benefits. It is the carrier's position that section 440.14(1)(e) allows for an adjustment to a minor's AWW, only as to situations where--during the period of disability at issue--there is evidence that the minor's income would probably be increased. Accordingly, it concludes, where evidence is presented disclosing an increase in a minor's wages following the specific period of disability claimed, an adjustment to the AWW pursuant to section 440.14(1)(e) is unwarranted. We agree.
If a minor claims temporary benefits and seeks also to have his AWW adjusted pursuant to the method provided in subsection (1)(e) of 440.14, any such adjustment cannot be based upon actual earnings received after the minor is no longer temporarily disabled. We think this conclusion is evident from a reading of that provision in the subsection referring to "period of disability." Initially we would observe that although claimant has suffered a PPI that will remain with him all of his natural life, the term permanent impairment is not synonymous with disability. Permanent impairment is defined as "any anatomic or functional abnormality or loss, existing after the date of maximum medical improvement, which results from the injury." § 440.02(21), Fla.Stat. Disability, on the other hand, is defined as "incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury." § 440.02(9), Fla.Stat. As we explained in Escambia County Council on Aging v. Goldsmith, 500 So.2d 626, 631-632 (Fla. 1st DCA 1986), the two terms are essentially different in meaning and application:
For many years permanent disability, under the act, has consistently meant the extent to which a permanent physical impairment of body functions, whether partial or total, due to injuries suffered in an industrial accident, has rendered a claimant unable to earn wages at the level earned before the accident. The extent of disability has consistently been held a question of fact for decision by the deputy based on consideration of many interrelating factors, including, but not limited to, the extent of such physical impairment.
We concluded in Goldsmith that permanent impairment "is not the conceptual equivalent of a claimant's 'disability' to earn wages or income at the level he or she was earning at the time of the industrial accident." Id. at 633.
Applying the above definition of disability to the facts at bar, we are of the view that because the claimant has demonstrated after the period of disability had ceased, he had actually earned wages at a level greater than those he had...
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