CITY OF HOLLYWOOD AND AMERICAN MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
PHILIP CASTORA, APPELLEE

Fla. 1st DCA | 1980-03-10
No. QQ-417
ERYIN, SHIVERS and SHAW, JJ., concur.
380 So. 2d 1148 Florida District Court of Appeal, First District (1980) Positive Treatment
Cited by 12 cases

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Synopsis

The Florida District Court of Appeal reversed a workers' compensation award of 65% permanent partial disability, finding the deputy commissioner's wage-earning capacity determination was based on speculation rather than competent substantial evidence. The court also corrected the allocation of liability for future medical treatment between two insurance carriers and remanded for reconsideration of attorney's fees.


Holding

The court held that the wage-earning capacity determination was not supported by competent substantial evidence but rather rested on speculation in violation of Wesley's Inc. v. Caramello. Recovery based on wage-earning capacity loss requires either an adequate job search or an excusal thereof. Since the claimant failed to demonstrate disability beyond the unchallenged 34% anatomical rating, recovery is limited to that amount. The court also held that Continental Insurance Company's obligations became final and could not be altered on remand, and American Mutual's liability is limited to injuries from the 1975 accident.


Headnotes

[1] A determination of wage earning capacity loss must be based on competent substantial evidence in the record, not mere speculation.

[2] A claimant's recovery for wage earning capacity loss cannot be predicated on such criteria absent an adequate job search or a legally sufficient excusal for failing to co…

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Key Quotes

“the determination is not based on competent substantial evidence unless there is some evidence in the record to support the figures arrived at by the deputy”

Establishes the standard that wage-earning capacity determinations must be based on evidence in the record, not speculation

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Facts & Procedural History

Claimant Philip Castora was injured in an accident covered by workers' compensation insurance. The Industrial Relations Commission remanded the case t…

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Opinion of the Court
PER CURIAM.

[*1149] PER CURIAM.

Pursuant to a remand from the Industrial Relations Commission, the deputy commissioner entered the order currently on appeal. In doing so, he recited his initial findings and merely substituted an award of 65% permanent partial disability for his initial award of permanent total disability.

In an effort to arrive at wage earning capacity, the deputy speculated as follows:

. In all probability, the Claimant would be able to demonstrate a wage earning capacity at the minimum federal hourly wage rate . . . $106.00 weekly . . . premised upon an hourly rate of $2.65 per hour and a forty hour work week. .

Florida’s Supreme Court, in Wesley’s Inc. v. Caramello, 156 So. 2d 853 (Fla.1963), put to rest such conjecture by pointing out that while the deputy’s finding with regard to wages the claimant can earn might not be unreasonable in light of his knowledge of present economic conditions and wage scales, nevertheless, the determination is not based on competent substantial evidence unless there is some evidence in the record to support the figures arrived at by the deputy. Id. at 855, 856. The deputy’s speculation in this instance will not support a wage earning capacity loss.

In its order of remand the Industrial Relations Commission ruled that the claimant had not made a prima facie showing of his industrial unemployability. As a matter of law, a claimant’s recovery cannot be predicated upon wage earning capacity loss criteria absent an adequate job search, or its excusal. Exxon Company, U.S.A. v. Alexis, 370 So. 2d 1128 (Fla.1978); Chicken’N’Things v. Murray, 329 So. 2d 302 (Fla.1976). The inadequacy of the claimant’s job search is res judicata and finding no basis in the record for excusal, we conclude that the claimant has failed to demonstrate a disability in excess of his anatomical rating, therefore recovery is limited to the 34% anatomical rating which is unchallenged. Accordingly, the award of 65% permanent partial disability is hereby reversed and the cause is remanded for a new order limiting recovery to 34% permanent partial disability-

In his initial order the deputy directed that as between Continental Insurance Company and American Mutual Liability Insurance Company, each carrier shall provide the claimant with such treatment as may be required by the injury sustained from the accident for which that particular carrier was responsible. Absent a timely appeal, this award of future medicals became final twenty days after copies were mailed to the parties. Section 440.25(4)(a), Florida Statutes (1975). The Commission, on remand, noted that Continental Insurance Company was not a party to the appeal and its obligations were fixed by the order of November 15, 1976. The order now being appealed appears to place all responsibility for future medical treatment upon American Mutual Liability Insurance Company and in so doing it is in error and is reversed. See Florida Parole and Probation Commission v. Fry, 9 FCR 324 (1975). American Mutual’s liability for future medical treatment is limited to the 1975 accident and injuries resulting therefrom.

As to Point 3, counsel’s entitlement to a fee is contingent upon what, if any, benefits he has obtained for his client over and above those benefits voluntarily given by the carrier. This issue shall be reexamined on remand.

The order is reversed and the cause is remanded for entry of an order consistent with this opinion.

ERYIN, SHIVERS and SHAW, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Regency INN v. Johnson, 422 So. 2d 870 (Fla. 1st DCA 1982)
    …the evidentiary test for employability which had become “enshrined” (as Professor Alpert concedes) in Florida compensation jurisprudence prior to 1979. (See, Exxon Company, U.S.A. v. Alexis, 370 So. 2d 1128 (Fla.1978); City of Hollywood v. Castora, 380 So. 2d 1148 (Fla. 1st DCA 1980)). Professor Alpert proceeds further in his argument to urge that the determination of what a claimant is “able to earn” after an accident, “... can best be made by examining the claimant’s actual physical impairment, age, industr…
  • …of surrounding employment conditions. While a worker may be compensated for the aggravation of an injury by economic factors, the findings of the Deputy Commissioner as to these factors must be based on record evidence. City of Hollywood v. Castora, 380 So. 2d 1148 (Fla. 1st DCA 1980). This is true regardless of the accuracy of the noticed facts. Wesley’s, [*1081] Inc. v. Caramello, 156 So. 2d 853 (Fla.1963). Apparently the deputy treated the economic conditions of the LaBelle-Clewiston area, and the nature of…
  • Pantry Pride v. Gonzalez, 382 So. 2d 818 (Fla. 1st DCA 1980)
    …ted work effort displayed in this case, it is clear that claimant has failed to meet the burden of testing his employability in the open labor market after attaining maximum medical improvement. (Citations omitted.) In City of Hollywood v. Castora, 380 So. 2d 1148 (Fla. 1st DCA 1980), this Court found that a judge of industrial claims’ finding with regard to a claimant’s wage-earning capacity is not based on competent substantial evidence unless there is some evidence in the record to support the figures at w…

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