BREVARD BOARD OF COUNTY COMMISSIONERS AND U. S. FIDELITY AND GUARANTY COMPANY, APPELLANTS,
v.
BILLIE E. CALDWELL, APPELLEE
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The Florida District Court of Appeal reversed a workers' compensation award of permanent partial disability based on loss of wage earning capacity because the Industrial Relations Commission's prior finding regarding inadequate work search was res judicata and binding on remand. The court held that findings of permanent partial disability based on wage earning capacity loss require a bona fide work search, and the judge was limited to anatomical impairment findings on remand.
A finding of permanent partial disability based on loss of wage earning capacity requires a bona fide work search. The Industrial Relations Commission's prior finding regarding the inadequacy of the work search was res judicata and bound the judge on remand, limiting him to entry of an order based on anatomical impairment alone. The awards for remedial care and outstanding medical bills were affirmed as they were included in the original order and not challenged in the earlier appeal.
[1] A finding of permanent partial disability based on loss of wage earning capacity requires a bona fide work search.
[2] A prior ruling by an appellate commission on the adequacy of a work search is res judicata and binds the lower tribunal on remand.
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Join FLexlaw to unlock all legal intelligence“A finding of permanent partial disability based on the loss of wage earning capacity requires that there be a bona fide work search.”
Establishes the legal requirement that wage earning capacity awards depend on a valid work search
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Join FLexlaw to unlock all legal intelligenceThe claimant initially received a finding of permanent total disability from the Judge of Industrial Claims with extensive findings of fact. The Indus…
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MILLS, Chief Judge.
In the initial order entered in this case, the Judge of Industrial Claims set forth extensive findings of fact and ruled that the claimant had suffered permanent total disability. The Industrial Relations Commission reversed on appeal, holding that the claimant had not undertaken a sincere and thorough work search. IRC Order 2-3313 (January 10, 1978), cert. denied at 364 So. 2d 882 (Fla.1978). On remand, the Judge simply adopted and incorporated the findings of his previous order except the finding of permanent total disability and entered a finding of 70 percent permanent partial disability based on loss of wage earning capacity. We reverse.
A finding of permanent partial disability based on the loss of wage earning capacity requires that there be a bona fide work search. Since the earlier order by the Industrial Relations Commission was res ju-dicata as to the adequacy of the work search, the Judge of Industrial Claims was bound by it and was limited on remand to entry of an order based on anatomical impairment. See Florida Parole and Probation Commission v. Fry, IRC Order 2-2864 (October 30, 1975).
Two other issues were raised in this appeal: that it was error to award further remedial care and treatment while simultaneously finding maximum medical improvement and that it was error to order payment of outstanding medical bills when no medical bills were introduced into evidence. The record shows that these awards were included in the original order and were not challenged in the earlier appeal to the Industrial Relations Commission. For this reason, we now affirm.
Since we are reversing the award of benefits, attorney’s fees must also be reversed and remanded for reconsideration.
REVERSED and REMANDED for entry of an order consistent with this opinion.
McCORD, J., concurs.
BOOTH, J., dissents with opinion.
BOOTH, Judge,
dissenting.
I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So. 2d 1265 (Fla.1st DCA 1979).
On the merits, I would concur in the majority’s opinion.
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COE v. Ky. Fried Chicken & St. Paul Fire & Marine Ins. Co., 393 So. 2d 1156 (Fla. 1st DCA 1981)…e claimant’s work search was inadequate, and there is competent substantial evidence to support this finding. Thus, the claimant was not entitled to PPD compensation based on loss of wage-earning capacity, see Brevard Bd. of Cty. Com’rs v. Caldwell, 379 So. 2d 1031 (Fla. 1st DCA 1980), and his claim for such compensation must now be denied nunc pro tunc as of the date of the Deputy’s Order. We recognize that the claimant also argues that he is permanently and totally disabled. But after carefully reviewing t…
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Bell Rentals & Sales & Travelers Ins. Co. v. Harvey, 405 So. 2d 289 (Fla. 1st DCA 1981)…is now. The deputy’s initial order awarded remedial treatment. We affirmed this holding of the deputy. Bell and Travelers did not challenge the deputy’s holding or our opinion. It may not do so now. Brevard Board of County Commissioners v. Caldwell, 379 So. 2d 1031 (Fla. 1st DCA 1980). In the prior Bell case, we held that medical costs are never apportionable between carriers. We recede from that opinion because before and after the prior Bell case we held that medical costs may be apportioned between carrie…
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Dade Cnty. Sch. Bd. & Gallagher Bassett Ins. Serv. v. Gibavitch, 397 So. 2d 1142 (Fla. 1st DCA 1980)…th respect to claimant’s lack of a job search, or absence of the requisite permanent anatomical disability. We hold that these issues could have, and should have been presented in the prior appeal. See Brevard Board of County Commission v. Caldwell, 379 So. 2d 1031 (Fla. 1st DCA 1980). Furthermore, we note that the employer/carrier did make an issue, in the prior appeal, of the sufficiency of findings of fact contained in the prior order. On this point, the Industrial Relations Commission affirmed. We have no…
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- Emerson Crews v. Town OF BAY Harbor Islands & Metro. Dade Cnty. Self Ins. Fund, 378 So. 2d 1265 (Fla. 1st DCA 1979)