Walker v. Electronic Products & Engineering Co.
| Decision Date | 19 May 1971 |
| Docket Number | No. 40194,40194 |
| Citation | 248 So.2d 161 |
| Parties | Nevada WALKER, Petitioner, v. ELECTRONIC PRODUCTS & ENGINEERING COMPANY et al., Respondents. |
| Court | Florida Supreme Court |
Philip Freidin of Spencer & Taylor, Miami, for petitioner.
John G. Tomlinson of Williams & Tomlinson, Coral Gables, Patrick H. Mears and J. Franklin Garner, Tallahassee, for respondents.
By petition for certiorari, we have for review a decision of the Industrial Relations Commission, which reversed an award of benefits ordered by the Judge of Industrial Claims.
The claimant is a 55-year-old assembly checker at Respondent's plant. On November 28, 1966, while in the course and scope of her employment, the claimant slipped on an oily surface in the employer's plant and fell, striking full force on her buttocks and then snapping back and striking her head on the concrete floor. Two days later, she sought medical care, and was seen initially by Dr. Jay Wemple, then after two weeks obtained treatment from Dr. C. L. Wilson, an orthopedic surgeon, upon authorization by her employer. Subsequently, claimant was examined or treated by Dr. Kenneth Luxenberg and Dr. Christian Keedy, both neurosurgeons; Dr. Donald Nixon, a psychiatrist; Dr. O. Whitmore Burtner, an internist; Dr. Simon Markovich, a neurologist; and Dr. Ronald Mann, an orthopedic surgeon appointed by the Commission who performed surgery for claimant. William Reilly, a vocational counsellor, also consulted with the claimant as to her disability and employment. All these experts, except Dr. Wemple, presented testimony as to claimant's claims for compensation.
The Judge of Industrial Claims conducted several hearings, at which conflicting medical evidence was presented. To help resolve these conflicts, the Judge appointed Dr. Mann to examine claimant. Dr. Mann performed a laminectomy and testified as the claimant's physical condition. Most of the evidence presented at the hearings was medical, relating to claimant's physical disability.
At the conclusion of the hearings, the Judge of Industrial Claims made the finding and conclusion:
'That claimant reached her maximum medical improvement on 4 December 68 and has suffered a 35% Permanent partial disability of the body as a whole, based upon a diminution of her wage earning capacity to that extent.'
On review by the Commission, the 'primary issue' was stated to be 'whether there is competent substantial evidence in the record to support the finding that the claimant has suffered a 35 per cent diminution of wage earning capacity.' The Commission held
'A careful review of the record clearly indicates to us that the claimant has failed to establish that she has suffered an earning capacity loss or to offer any evidence upon which the judge could justify the basis for his award.'
The Commission then ordered the cause remanded to the Judge of Industrial Claims, with authority to hold additional hearings and to receive evidence as to loss of wage-earning capacity. In its order, the Commission relied on the decision of this Court in City of Hialeath v. Warner, 128 So.2d 611 (Fla.1961). The Commission properly rejected the cross-application of claimant wherein she contended she was permanently totally disabled.
The compelling question before this Court is whether the evidence before the Judge of Industrial Claims was sufficient in law to support the award of benefits for 35 per cent disability based on loss of wage-earning capacity.
It is accepted law that disability for compensation purposes is grounded both on loss of wage-earning capacity and on actual physical impairment. Fla.Stat. § 440.15(3)(u), F.S.A., provides that disability 'means either physical impairment or diminution of wage earning capacity, whichever is greater.'
In measuring the loss of wage-earning capacity, no single factor is conclusive. Criteria by which loss of earning capacity may be measured have been announced in a number of cases decided by this Court. These criteria include:
(1) Extent of actual physical impairment;
(2) Claimant's age;
(3) Industrial history;
(4) Education of claimant;
(5) Inability to obtain work of a type which claimant can perform in light of his after-injury condition;
(6) Wages actually being earned after the injury (a factor entitled to great weight);
(7) Claimant's ability to compete in the open labor market the remainder of his life, including the burden of pain, or inability to perform the required labor;
(8) Claimant's continued employment in the same employ.
Ball v. Mann, ...
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Fletcher v. Dana Corp.
...Inc., 477 So.2d 591, 594 (Fla. 1st DCA 1985), disc. review denied, 486 So.2d 597 (Fla.1986) (quoting Walker v. Electronic Products & Engineering Co., 248 So.2d 161, 163 (Fla.1971)); see also Church's Fried Chicken v. Maloney, 599 So.2d 706, 710 (Fla. 1st DCA 1992) and Vann v. St. Anthony's ......
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Flesche v. Interstate Warehouse, AD-327
...number of criteria by which wage-earning capacity must be measured, and "no single factor is conclusive." Walker v. Electronic Products & Engineering Co., 248 So.2d 161, 163 (Fla.1971). Of course, claimant's physical or mental condition may be such that the absence of a job search is reason......
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Brown v. S. S. Kresge Co., Inc.
...(Emphasis supplied.) Petitioner urges as to her wage earning capacity loss that the criteria expressed in Walker v. Electronics Products & Engineering Co., 248 So.2d 161 (Fla.1971), Should be applied herein; namely, the extent of physical impairment; claimant's age, industrial history, and ......
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Regency Inn v. Johnson
..."[i]nability to obtain work of a type which claimant can perform in light of his after-injury condition," Walker v. Electronic Products & Engineering Co., 248 So.2d 161, 163 (Fla.1971). We find, accordingly, that the rule stated in LeHigh and its progeny should not govern the evaluation of ......