BURGER CHEF OF BRADENTON AND AMERICAN LIBERTY INSURANCE COMPANY, APPELLANTS,
v.
BARBARA BENEDETTO, APPELLEE
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Burger Chef and its insurance carrier appealed a workers' compensation award of 25% permanent partial disability benefits for an employee who injured her lower back. The appellants argued the employee failed to conduct an adequate work search as required by Exxon v. Alexis, but the court affirmed, finding the work search was excused under the circumstances.
The court affirmed the 25% disability award, holding that the claimant's failure to conduct a work search was excused because two treating physicians opined she was not yet capable of returning to employment, and requiring a work search would place her in the awkward position of having to disregard medical advice to preserve her disability claim.
[1] A workers' compensation claimant's failure to conduct a work search may be excused when circumstances justify such excusal, even without the claimant being confined to be…
[2] A workers' compensation award for loss of wage earning capacity exceeding anatomical impairment may be justified by a good faith effort to test earning capacity in the op…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In order to justify an award of permanent disability based on a loss of wage earning capacity in excess of an anatomical disability rating, either the claimant must have made a good faith effort to test her wage earning capacity in the open labor market, Exxon Co. v. Alexis, 370 So.2d 1128 (Fla.1978), or the circumstances must have justified excusal of the work search”
Establishes the legal test for when a work search is required in workers' compensation cases
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn August 19, 1978, the claimant, an assistant manager at Burger Chef, fell on a wet floor and injured her lower back. Six physicians treated her with…
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JOANOS, Judge.
The appellants, Burger Chef of Braden-ton and its insurance carrier, American Liberty Insurance Company, appeal from a Workers’ Compensation order awarding 25% permanent partial disability benefits to the appellee/claimant. The deputy commissioner accepted the 13% anatomical impairment rating given by one of the physicians but increased the disability award to 25% due to wage earning capacity loss. Appellants challenge this award solely on the ground that the claimant failed to conduct an adequate work search as required by Exxon Co. v. Alexis, 370 So. 2d 1128 (Fla.1978). We affirm deputy’s order. On August 19, 1978, the claimant, an assistant manager of a Burger Chef restaurant, fell on a wet floor and injured primarily her lower back. After the accident, the claimant was seen by six doctors whose treatment ranged from traction to fitting claimant with a full length brace. None of these treatments served to lessen the claimant’s subjective complaints of pain. Based on these complaints, two doctors stated that the claimant was not able to resume active gainful employment although neither doctor could suggest any further medical treatment which might eliminate the pain.
At the hearing, the claimant testified that she had not looked for a job since the accident and listed numerous physical complaints, stating that she found difficulty in performing even simple household chores. In his order, the deputy specifically found that the claimant had not attempted to obtain any form of employment. The deputy also rejected in part the subjective limitations on physical activity which the claimant placed upon herself. Taking these findings into consideration as well as the claimant’s anatomic impairment rating and prior work history, the deputy concluded that the claimant had sustained a 25% reduction in wage earning capacity. In order to justify an award of permanent disability based on a loss of wage earning capacity in excess of an anatomical disability rating, either the claimant must have made a good faith effort to test her wage earning capacity in the open labor market, Exxon Co. v. Alexis, 370 So. 2d 1128 (Fla.1978), or the circumstances must have justified excusal of the work search, Sizemore v. Canaveral Port Authority, 332 So. 2d 23 (Fla.1976); Chicken ‘N’ Things v. Murray, 329 So. 2d 302 (Fla.1976), Dade County School Board v. Gibavitch, 1981 FLW 61 (Fla. 1st DCA December 19, 1980). In this case, the claimant admitted that she made no attempt to find a job, so her lack of a work search is apparent. The issue, then, is whether a work search was excused under the circumstances.
We find that there is competent substantial evidence to support the deputy’s implicit finding that the claimant’s failure to conduct a work search was excused. A claimant does not need to be confined to bed in order to justify excusing the performance of a work search. See, e. g. Sizemore, supra. In this case, two of claimant’s treating physicians gave the opinion that she was not yet capable of returning to some form of employment. If a work search were required under these circumstances, the claimant would be placed in the awkward position of having to go against her doctor’s advice in order to preserve a disability award based upon loss of wage earning capacity.
AFFIRMED.
McCORD and SHIVERS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Wright v. Golf Drive Residence, Inc., 412 So. 2d 884 (Fla. 1st DCA 1982)…job might exist that she is capable of performing. It was error, in view of this evidence, to find that claimant’s entitlement to consideration of her wage-earning capacity loss was dependent upon a job search. Burger Chef of Bradenton v. Benedetto, 394 So. 2d 206 (Fla. 1st DGA 1981); Sizemore v. Canaveral Port Authority, 332 So. 2d 23 (Fla.1976); Chicken ’N’ Things v. Murray, 329 So. 2d 302 (Fla.1976). As for the claimant’s contention that the deputy commissioner erred in allowing a set-off for compensation…
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Burger King Corp. & Emp'rs Ins. of Wausau v. Stark, 401 So. 2d 1173 (Fla. 1st DCA 1981)…. The appellants’ point is well-taken, especially when viewed in light of another factor: whether the claimant has made a good faith effort to test his wage-earning capacity in the open labor market after reaching MMI. See Burger Chef v. Benedetto, 394 So. 2d 206, 207 (Fla. 1st DCA 1981); Exxon Co. v. Alexis, 370 So. 2d 1128, 1132 (Fla. 1978). In this case, the Deputy found that “the claimant has conducted a thorough job search and is excused from any further search. His limitations and work history adversel…
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Lerman v. Broward Cnty. Bd. OF Cnty. Comm'rs & Risk Mgmt. Div., 555 So. 2d 419 (Fla. 1st DCA 1989)…d 597 (Fla.1986); Wright v. Golf Drive Residence, Inc., 412 So. 2d 884, 888 (Fla. 1st DCA), review denied, 419 So. 2d 1198 (Fla.1982); Dade County School Board v. Gibavitch, 397 So. 2d 1142 (Fla. 1st DCA 1981); Burger Chef of Bradenton v. Benedetto, 394 So. 2d 206, 207 (Fla. 1st DCA 1981). The record in this case reflects that (1) claimant’s treating physicians had not advised him that he was released to seek work within his medical restrictions, (2) claimant believed that his physicians had not released him…
Authorities Cited
- Chicken'n'things & Ins. Co. of N. Am. v. Martha Murray & the Fla. Dep't of Commerce, 329 So. 2d 302 (Fla. 1976)
- Exxon Co. v. Alexis, 370 So. 2d 1128 (Fla. 1978)
- Sizemore v. Canaveral Port Auth., 332 So. 2d 23 (Fla. 1976)