Krispy Kreme Doughnut Co. v. Pipkins

389 So. 2d 1243, 1980 Fla. App. LEXIS 18064

• Court: District Court of Appeal of Florida
• Decided: November 13, 1980
• Docket: No. SS-289
• Status: Published

Opinion

PER CURIAM.

The employer/carrier appeal a workers’ compensation order awarding permanent partial disability benefits based on loss of wage earning capacity. We agree with appellant’s contention that the order must be reversed because there is no finding of permanent anatomical impairment which is a prerequisite to an award based on wage earning capacity loss. Agrico Chemical Company v. Laws, 384 So.2d 722 (Fla. 1st DCA 1980). This requirement is not altered by the rule in Tropicana Pools Inc. v. Truex, 287 So.2d 71 (Fla.1973), that a deputy commissioner may assign a permanent impairment rating based on the testimony of the claimant, despite contradictory testimony by the treating physician.¹

REVERSED AND REMANDED, to the deputy commissioner for further findings as directed by this opinion.

ERVIN, LARRY G. SMITH and SHIVERS, JJ., concur.

1 . A statutory change, Section 440.25(3)(b), Florida Statutes (1978), although not applicable in this case, prohibits a finding of physical impairment greater than the highest permanent impairment rating given by a physician. Colonial and Semoran Shell Service, et al. v. Grissom, 389 So.2d 1219 (Fla. 1st DCA 1980).