No. 32298 | Fla. | Oct 23, 1963
Lead Opinion
We have for review a compensation order of the Florida Industrial Commission which reversed an order of a Deputy Commissioner awarding permanent partial disability benefits to an employee, Anthony Cianci.
Cianci suffered a herniated intervertebral disc in a compensable industrial accident. He ultimately returned to work under the state merit system. At the time of the hearing his monthly salary was somewhat greater than it was at the time of the injury. The Deputy concluded that eléments in addition to the employee’s functional disability supported an award of compensation on the basis of 30% permanent partial disability, despite the increase in earnings. An extended discussion of the evidence before the Deputy is unnecessary. In fixing the extent of a claimant’s disability the Deputy considered all of the factors prescribed in Ball v. Mann, Fla., 75 So. 2d 758" court="Fla." date_filed="1954-09-24" href="https://app.midpage.ai/document/ball-v-mann-1113106?utm_source=webapp" opinion_id="1113106">75 So.2d 758, for the determination of loss of wage earning capacity. In addition, he noted the holding in Southern Bell Telephone & Telegraph Co. v. Bell, Fla., 116 So. 2d 617" court="Fla." date_filed="1959-10-14" href="https://app.midpage.ai/document/southern-bell-telephone--telegraph-co-v-bell-1873079?utm_source=webapp" opinion_id="1873079">116 So.2d 617, to the effect that functional disability and loss of wage earning capacity are not presumptively the same for a non-scheduled injury. He also held that an increase in wages following an industrial accident is to be considered but that it is not a conclusive factor in determining the extent of loss of wage earning capacity.
Our examination of the record leads us to conclude that the order of the Deputy Commissioner awarding 30% permanent partial disability benefits was adequately supported by competent substantial evidence. The conclusion which we reach is governed by our decision in Nuce v. City of Miami Beach, Fla., 140 5o.2d 303. The factual situations in the instant case and those in Nuce are strongly analogous. We see no reason to apply a different rule of law.
It is so' ordered.
Dissenting Opinion
(dissenting).
The claimant is permanently employed by the state under the merit system at a salary greater than that he enjoyed at the time of the alleged injury. It is my view he has not suffered “disability” as defined by F.S. § 440.02(9), F.S.A. I must dissent.