Richards v. Ocean Tile, Marble & Terrazzo Co.

BY THE COMMISSION. This cause came on to be heard upon application of the employer and carrier for review of a deputy’s order dated July 27, 1955, awarding claimant compensation for disfigurement. Claimant was employed in the tile and marble business, and on July 8, 1954, while engaged in the course of his employment, [198] suffered an injury when the blade of a tile saw broke, flew past his face and caused a two-inch laceration on his left cheek. A permanent two-inch scar remains on his cheek. The deputy in his order found that the disfigurement affected claimant’s future earning capacity to the extent of 12y%% of the maximum allowance under section 440.15 (3) (t), Florida Statutes. The employer and carrier contend that the deputy’s finding is contrary to the law and evidence. Section 440.15 (3) (t) follows — “(t) Disfigurement: The commission shall award proper and equitable compensation for serious facial or head disfigurement, not to exceed two thousand dollars; provided, that in such award the commission shall consider only the effect such disfigurement shall have on the future earning capacity of the injured employee.” (Emphasis supplied.) Although the Supreme Court in Ball v. Mann, Fla. 1954, 75 So. 2d 758, was confronted with section 440.15 (3) (u), Florida Statutes, with respect to diminution of earning capacity where injuries to the body as a whole occur, rather than section 440.15 (3) (t), they set forth several factors to be considered in determining whether there has been a diminution of earning capacity in any one particular case, viz. — “* * * no one standard is conclusive in the determination of the degree of incapacity to earn the same wages as prior to an injury. Instead there should be taken into consideration, among other things,, such variables as the injured employee’s physical condition, age, industrial history, education, and inability to obtain the type of work which he can do insofar as affected by the injury.” In the instant cause we feel that “the effect such disfigurement shall have on the future earning capacity,” as specified in section 440.15 (3) (t), has a direct relationship to diminution of earning capacity as discussed in Ball v. Mann, supra. The record is devoid of substantial evidence relating to claimant’s future earning capacity. On the contrary, the only evidence relevant to claimant’s future earning capacity shows that claimant is now earning more wages than at the incidence of the injury. This fact alone is not necessarily conclusive, but in this case there is a total lack of any evidence to indicate that the scar on claimant’s cheek will ever adversely affect his earning capacity. Having considered the cause upon the record and arguments of counsel for the parties, and it appearing that the deputy’s findings of fact are not supported by competent substantial evidence, [199] which accords with logic and reason, and that his order does not accord with the essential requirements of the law, within the meaning of U. S. Casualty Co. v. Maryland Casualty Co., Fla. 1951, 55 So. 2d 741, the order is reversed and the claim for compensation for permanent partial disability on account of disfigurement is rejected.