SUAVE SHOE CORPORATION AND EMPLOYERS SERVICE CORPORATION, APPELLANTS,
v.
DANIEL SUAREZ, APPELLEE
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In a workers' compensation case, the Florida appellate court reversed an award increasing the claimant's permanent partial disability rating from 27.5% to 55% based on loss of wage-earning capacity, holding that the claimant failed to meet the statutory requirement to conduct a work search after reaching maximum medical improvement.
The court reversed the award, holding that the claimant failed to meet the work search requirement after the second date of maximum medical improvement and therefore was limited to the previously established 27.5% permanent partial disability rating from February 1976.
[1] A workers' compensation claimant must demonstrate an effort to test employability in the open labor market after reaching maximum medical improvement to justify an award…
[2] Failure to conduct a work search after the second date of maximum medical improvement precludes an award for an increased loss of wage-earning capacity in a workers' comp…
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“It is well established that in order to justify an award of compensation based upon a diminution of wage-earning capacity, a claimant must show that he has made an effort to test his employability in the open labor market after having reached maximum medical improvement.”
Establishes the legal standard that a claimant must conduct a work search after maximum medical improvement to receive benefits based on wage-earning capacity loss.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSuarez suffered a compensable back injury while working for Suave Shoe Corporation on October 20, 1972. He underwent two operations and had two dates …
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MILLS, Chief Judge.
Appellants contend that the determination by the Deputy Commissioner in this case involving a workers’ compensation modification that the claimant, Daniel Suarez, has sustained a 55% loss of wage-earning capacity was error because Suarez failed to conduct a work search after the second date of maximum medical improvement. We agree and reverse.
Suarez suffered an admittedly compensable accident while working with Suave Shoe Corporation, injuring his back. Since there have been two operations, two dates of MMI, and prior workers’ compensation orders, the chart of the dates and relevant incidents may be helpful:
20 October 1972 — date of accident.
6 December 1973 — first operation.
18 June 1974 — first date of MMI, with an assigned rating of 15% permanent physical impairment to the body as a whole. 2 February 1976 — workers comp order finding 27V2% permanent partial disability based on loss of wage-earning capacity.
10 September 1976 — second operation.
20 July 1977 — second date of MMI with an assigned rating of 15% permanent physical impairment of the body as a whole and 25% permanent physical impairment to the lower right extremity.
The record also shows that from 10 July 1974 to March of 1976 the claimant worked at Gator Shoes and that he had not worked since and had not sought employment since that time.
A recent case from this court, General Electric Company v. Osborne, Case No. UU-48, Opinion filed March 10, 1981, is directly on point. There, as here, though the worker was able to show a change of physical condition, the increase in benefits was based on an increased loss of wage-earning capacity, but there was no evidence that the work search requirement had been met. Walker v. Electronic Products, 248 So. 2d 161 (Fla.1971).
In Exxon Company v. Alexis, 370 So. 2d 1128 (Fla.1978), the Supreme Court reversed an award based on a 40% loss of wage-earning capacity where the claimant was reemployed after his first hospitalization, but made no further efforts to seek employment after he was terminated approximately three months prior to the date of maximum medical improvement, stating:
It is well established that in order to justify an award of compensation based upon a diminution of wage-earning capacity, a claimant must show that he has made an effort to test his employability in the open labor market after having reached maximum medical improvement. (370 So. 2d 1132)
Since there is no evidence of a work search, Suarez has failed to demonstrate a disability in excess of the rating of 27V2% permanent partial disability in February 1976 and, therefore, recovery is limited to that rating.
Because of our disposition of the point raised on appeal, we need not rule on the issues raised on the cross-appeal.
REVERSED and REMANDED for proceedings consistent with this opinion.
WENTWORTH, J., and OWEN, WILLIAM C., Jr. (Retired), Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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The Austin Co. & Gen. Accident Grp. v. Lindenberger, 410 So. 2d 601 (Fla. 1st DCA 1982)…ficient evidence on which to predicate a finding of increased wage earning capacity loss from 12% to 25%. We agree. The record reveals that the E/C sufficiently rebutted claimant’s alleged job search. See generally, Suave Shoe Corporation v. Suarez, 396 So. 2d 777 (Fla. 1st DCA 1981) and cases cited therein. Finally, E/C complain that the deputy erred in ordering that appellants furnish claimant remedial treatment, care and attendance when no corresponding claim to those benefits was made by claimant. This c…
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Univ. OF W. Fla. & Div. of Risk Mgmt. of the State of Fla. v. Nall, 404 So. 2d 381 (Fla. 1st DCA 1981)…earning capacity in the open labor market by a good faith work search, after MMI has been reached. Exxon Company v. Alexis, 370 So. 2d 1128 (Fla.1978); Pasco County v. Green, 382 So. 2d 798 (Fla. 1st DCA 1980); and Suave Shoe Corporation v. Suarez, 396 So. 2d 777 (Fla. 1st DCA 1981). Here there was no work search, and we fail to find in the record any evidence that claimant is unable to seek other employment, or that he is unable to work at other employment which is no more physically demanding than his pres…
Authorities Cited
- THE Florida BAR v. Lemlich, 248 So. 2d 161 (Fla. 1971)
- Exxon Co. v. Alexis, 370 So. 2d 1128 (Fla. 1978)
- Dep't OF Bus. Reg. v. Nat'l Manufactured Hous. Fed'n, Inc., 370 So. 2d 1132 (Fla. 1979)