LAWRENCE COE, APPELLANT,
v.
KENTUCKY FRIED CHICKEN AND ST. PAUL FIRE & MARINE INSURANCE CO., APPELLEES
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In this workers' compensation appeal, the court addresses whether a Deputy Commissioner properly reserved jurisdiction to rule on the claimant's loss of wage-earning capacity. The court holds that the Deputy erred by failing to rule on this issue at the time of the initial order, as the statute requires consideration of whichever disability measure is greater.
Yes. The Deputy Commissioner lacked authority to reserve jurisdiction on the wage-earning capacity issue. Under Florida Statute § 440.15(3)(u), disability means either physical impairment or diminution of wage-earning capacity, whichever is greater, and the Deputy was required to rule on both issues in the initial order. The proper procedure for later raising a wage-earning capacity claim is through a petition for modification.
[1] A workers' compensation deputy commissioner lacks the authority to reserve jurisdiction to rule on the issue of loss of wage-earning capacity after determining physical i…
[2] In cases involving unscheduled injuries, workers' compensation disability is defined as either physical impairment or diminution of wage-earning capacity, whichever is gr…
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Join FLexlaw to unlock all legal intelligence“disability "means either physical impairment or diminution of wage-earning capacity, whichever is greater."”
Establishes the statutory standard that requires consideration of both impairment and wage-earning capacity, with compensation based on whichever is greater.
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Join FLexlaw to unlock all legal intelligenceThe claimant sustained two work-related injuries within one month in 1976 and has not returned to work since then, though he made unsuccessful work at…
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THOMPSON, Judge.
The claimant challenges a workers' compensation Order, contending that the Deputy Commissioner (“the Deputy”) erred by failing to rule on the issue of whether the claimant’s loss of wage-earning capacity exceeded the extent of his physical impairment. We agree and reverse on this point.
Within a one-month period in 1976, the claimant was injured in two work-related accidents. He has not returned to work since then, although he unsuccessfully attempted to work in two different positions during April 1979. One physician testified that anatomically, the claimant experienced a 25% permanent partial disability (“PPD”). The Deputy later entered his Order, finding that the claimant “has an anatomical disability of 25% of the body as a whole.... ” However, the Deputy also reserved jurisdiction to rule on the issue of the claimant’s loss of wage-earning capacity, because “the claimant has not fully tested his capabilities at job employment ..., and in addition, rehabilitation ... has not been fully utilized.”
Insofar as this case involves unscheduled injuries, § 440.15(3)(u), Fla.Stat. (1977), provides that disability “means either physical impairment or diminution of wage-earning capacity, whichever is greater.” Here, the Deputy found that the claimant suffered a 25% physical impair ment, and he ordered that compensation be paid based on this finding. However, he should have also ruled on the issue of whether the claimant’s loss of wage-earning capacity exceeded a 25% anatomical PPD. The Deputy had no authority to reserve jurisdiction to rule on this issue. See Maffitt v. Henderson’s Portion-Pak, Inc., 132 So. 2d 410, 411-12 (Fla. 1961). See also Sanz v. Eden Roc Hotel, 140 So. 2d 104 (Fla.1962).
Accordingly, we reverse the Deputy’s Order, but only to the extent that jurisdiction was retained to rule on the issue of loss of wage-earning capacity. AH other portions of the Order are affirmed. In this respect, the Deputy found that the 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 the record, we find that the Deputy’s determination of a 25% anatomical PPD is fully supported by competent substantial evidence. Finally, we note that if the claimant should maintain that his loss of wage-earning cápacity subsequently exceeds a 25% PPD based on his physical impairment, the proper method for raising this point is via a petition for modification pursuant to § 440.28, Fla.Stat. See Maffitt, 132 So. 2d at 412.
ROBERT P. SMITH, Jr., J., and WOOD-IE A. LILES (Ret.) Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Poole & Kent Co. & Reliance Ins. Co. v. Asbell, 394 So. 2d 1112 (Fla. 1st DCA 1981)…this issue, explaining that the claimant had not conducted a meaningful job search. The Deputy had no authority to reserve jurisdiction to rule on this issue, which was properly noticed and ready for adjudication. See Coe v. Kentucky Fried Chicken, 393 So. 2d 1156 (Fla. 1st DCA 1981); see also Garitson v. Rifenburg, 380 So. 2d 1311 (Fla. 1st DCA 1980). The claimant failed to demonstrate that his loss of wage-earning capacity exceeded his anatomical impairment, and therefore, his claim for disability compensat…1 / 2
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Parks v. Dade Cnty. Waste Div. & Metro. Dade Cnty. Self-Insurance Fund, 402 So. 2d 563 (Fla. 1st DCA 1981)…Commissioner properly found that Parks’ work search was inadequate to show that employment was closed to him in the open labor market. See Mahler v. Lauderdale Lakes National Bank, 322 So. 2d 507 (Fla. 1975). See also Coe v. Kentucky Fried Chicken, 393 So. 2d 1156 (Fla. 1st DCA 1981). The claimant also urges that the Deputy Commissioner erred in permitting [*564] the employer/carrier to deduct a lump sum of $4,000 which Parks received as part of a settlement agreement relating to a prior injury. The order f…
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S. Miami Hosp. & Travelers Ins. Co. v. FAZ, 406 So. 2d 83 (Fla. 1st DCA 1981)…vidence before him. “The deputy had no authority to reserve jurisdiction to rule on this issue, which was properly noticed and ready for adjudication.” Poole and Kent Co. v. Asbell, 394 So. 2d 1112 (Fla. 1st DCA 1981); Coe v. Kentucky Fried Chicken, 393 So. 2d 1156 (Fla. 1st DCA 1981). Although claimant failed to conduct a work search, there is medical evidence indicating she is unable to work. “As a matter of law, a claimant’s recovery cannot be predicated upon wage-earning capacity loss criteria absent an a…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sanz v. Eden ROC Hotel, 140 So. 2d 104 (Fla. 1962)
- Brevard Bd. OF Cnty. Comm'rs & U. S. Fid. & Guar. Co. v. Caldwell, 379 So. 2d 1031 (Fla. 1st DCA 1980)
- Maffitt v. Henderson's Portion-Pak, Inc., 132 So. 2d 410 (Fla. 1961)