QQ-172 | Fla. Dist. Ct. App. | Feb 14, 1980
Edward J. LaBRECQUE, Appellant,
v.
FLORIDA VOCATIONAL REHABILITATION AND DIVISION OF RISK MANAGEMENT, Appellee.
District Court of Appeal of Florida, First District.
*483 Stephen Marc Slepin of Slepin & Slepin, Tallahassee, for appellant.
Thomas F. Woods of Woods, Johnston & Erwin, Tallahassee, for appellee.
PER CURIAM.
Claimant appeals a compensation award of 40% permanent disability to the foot. Cross-appellant appeals the award of attorney's fees.
Claimant injured his right ankle in an industrial accident on May 13, 1975. Dr. Bellamy testified that claimant's disability rating was 50% permanent impairment of the foot, 40% permanent impairment of the leg, or 35% permanent disability of the body as a whole considering his ankle injury in conjunction with a preexisting degenerative arthritis in his left hip. The JIC awarded claimant a 40% permanent disability of the leg, entitling him to 80 weeks of compensation.
Claimant urges on appeal that he was entitled to the most favorable remedy, i.e., 50% of the foot, entitling him to 87 1/2 weeks of compensation, or 35% permanent disability of the body as a whole. We agree and reverse the order as to the 40% disability of the leg. In reviewing the record, we do not find competent, substantial evidence to support an award of 35% permanent disability of the body as a whole. However, the evidence does support the finding that the claimant sustained a permanent disability to his ankle.
It is apparent that an ankle injury could be interpreted as either a foot injury or a leg injury. Since Section 440.15(3), Florida Statutes (1973) addresses injuries for the loss of a foot or loss of a leg but makes no mention of loss of an ankle, the JIC should have awarded claimant the most favorable remedy, disability for loss of a foot. When the Workmen's Compensation Act is susceptible of disparate interpretations, the construction most favorable to the employee shall be adopted. Farrens Tree Surgeons v. Winkles, 334 So. 2d 569" court="Fla." date_filed="1976-06-09" href="https://app.midpage.ai/document/farrens-tree-surgeons-v-winkles-1781003?utm_source=webapp" opinion_id="1781003">334 So. 2d 569 (Fla. 1976).
We reverse the award as to the disability and instruct the JIC to enter an order awarding claimant a 50% permanent disability of the foot. As to all other issues, the JIC's order is affirmed.
MILLS, C.J., and McCORD and BOOTH, JJ., concur.