JOSEPH PEARSON, APPELLANT,
v.
CITY OF MIAMI BEACH AND RISK MANAGEMENT SERVICES, INC., APPELLEES
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An injured worker in a workers' compensation case challenged the deputy commissioner's denial of permanent partial disability compensation beyond his anatomical disability rating, claiming wage-earning capacity loss. The court held that while the employee must demonstrate good faith job search efforts after reaching maximum medical improvement, he need not actually return to work to qualify for such compensation when jobs matching his capabilities are unavailable.
An injured employee need not actually return to work to justify an award for wage-earning capacity loss exceeding physical impairment, provided he demonstrates a good faith work search after reaching maximum medical improvement and there is no evidence of available work within his capabilities. The credibility and sufficiency of evidence regarding good faith job search efforts remain factual matters for the deputy commissioner to determine.
[1] An injured employee seeking compensation for wage-earning capacity loss exceeding physical impairment must prove a good faith work search after reaching maximum medical i…
[2] An injured employee is not required to have returned to work to establish a loss of wage-earning capacity in excess of physical impairment when there is no evidence of wo…
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Join FLexlaw to unlock all legal intelligence“he is not required to have first returned to work, where, as in this case, there is no evidence of availability of work within the claimant's capabilities”
Establishes that actual return to work is not a prerequisite when no suitable employment exists within the claimant's physical limitations
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Join FLexlaw to unlock all legal intelligenceJoseph Pearson, an injured employee, sought workers' compensation benefits. After reaching maximum medical improvement, he applied to approximately tw…
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OWEN, WILLIAM C., Jr. (Retired), Associate Judge.
In this workers’ compensation case, the injured employee, although awarded permanent partial disability equal to the anatomical disability rating of the treating physician, contends that fhe deputy commissioner erred in failing to award appellant permanent partial disability for a wage-earning capacity loss in excess of the anatomical disability rating.
The relevant portion of the deputy commissioner’s order contained the following finding:
“(6) Although claimant submitted into evidence a long list of places where he sought employment over a short span of time, he admitted that there had been no return to work and therefore, no opportunity to test his earning capacity on the open labor market and it is therefore found that his permanent disability on loss of wage earning capacity basis does not exceed his disability on the basis of a physical impairment as evaluated by the treating physician.” (e. s.)
While an injured employee, in order to justify an award of compensation for diminution of wage-earning capacity in excess of physical impairment, has the burden of proving that he has made an effort to test his employability in the open labor market after having reached maximum medical improvement, Exxon Company v. Alexis, 370 So. 2d 1128 (Fla.1978), by a good faith work search, Pasco County v. Green, 382 So. 2d 798 (Fla. 1st DCA 1980), he is not required to have first returned to work, where, as in this case, there is no evidence of availability of work within the claimant’s capabilities.
Appellant offered competent, substantial evidence to establish a loss of wage-earning capacity in excess of the anatomical disability rating, and also evidence that after reaching maximum medical improvement he had applied without success to approximately twenty-two separate employers for work within his physical limitations. The credibility and sufficiency of that evidence to establish a good faith work search on the part of appellant remains a factual matter to be determined by the deputy commissioner upon remand.
That part of the compensation order dated March 20, 1980, pertaining to the claim for loss of wage-earning capacity in excess of physical impairment is reversed, and this cause remanded to the deputy commissioner for further proceedings on that part of the claim including, in the discretion of the deputy commissioner, the taking of further evidence on that issue.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
MILLS, C. J., and WENTWORTH, J., concur.
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Flesche v. Interstate Warehouse & U. S. Fid. & Guar. Co., 411 So. 2d 919 (Fla. 1st DCA 1982)…on the issues of claimant’s employability. Taylor v. Brennan Construction Company, 143 So. 2d 320 (Fla.1962); Trieste v. Anchell, 143 So. 2d 673 (Fla.1962); Scotty’s, Inc. v. Jones, 393 So. 2d 657 (Fla. 1st DCA 1981); Pearson v. City of Miami Beach, 399 So. 2d 1135 (Fla. 1st DCA 1981).…
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Lake Cnty. Comm'rs & U. S. Fid. & Guar. Co. v. Walburn, 409 So. 2d 153 (Fla. 1st DCA 1982)…claimant explored the entire spectrum of employment opportunities which he may conceivably have been suited for is, in my view, a discretionary call by the trier of fact that I would leave undisturbed. As we stated in Pearson v. City of Miami Beach, 399 So. 2d 1135, 1136 (Fla. 1st DCA 1981): “The credibility and sufficiency of . .. evidence to establish a good faith work search on the part of appellant remains a factual matter to be determined by the deputy commissioner . . . . ” I differ also with the rever…
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Belle v. Gen. Elec. Co. & Elec. Mut. Liab. Ins. Co., 409 So. 2d 182 (Fla. 1st DCA 1982)…t until two weeks before the hearing, claimant had applied for work only with her former employer, and thereafter with several other prospective employers, none of whom then had any available openings. As we stated in Pearson v. City of Miami Beach, 399 So. 2d 1135, 1136 (Fla. 1st DCA, 1981): “The credibility and sufficiency of . . . evidence to establish a good faith work search . ... remains a factual matter to be determined by the deputy commissioner ... . ” I think, however, the rule the majority has sanct…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Exxon Co. v. Alexis, 370 So. 2d 1128 (Fla. 1978)
- Gordon v. Fla. Parole & Prob. Comm'n, 382 So. 2d 798 (Fla. 1st DCA 1980)