FELLOWS, READ & WEBER, AND AMERICAN MOTORISTS INSURANCE COMPANY (KEMPER INSURANCE COMPANY), APPELLANTS,
v.
JAMES J. LANCE, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
In this workers' compensation appeal, the Florida District Court of Appeal affirmed an award of temporary total disability to an employee who sustained a compensable knee injury, rejecting the employer/carrier's argument that physical inability to work is the sole determinant of disability. The court held that disability can be established through wage loss caused by a work-connected injury, even when the claimant is physically capable of some work but cannot obtain employment due to the injury.
The court affirmed the award of temporary total disability, holding that physical inability to work is not the sole factor in determining temporary total disability. Disability under Florida law includes incapacity to earn the same or other wages due to the injury, and wage loss traceable directly to a compensable injury establishes disability even without total medical incapacity.
[1] Temporary total disability benefits may be awarded when a claimant is unable to earn wages due to a compensable injury, even if the inability to earn is caused by the una…
[2] Incapacity to earn wages in the same or other employment, resulting from a work-connected injury, is the statutory definition of disability for workers' compensation purp…
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“"Disability" is defined in section 440.-02(9), Florida Statutes (1979) as "incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury."”
Establishes the statutory definition of disability that focuses on wage-earning capacity rather than total physical incapacity
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceClaimant sustained a knee injury on the job and initially continued working. When his condition worsened, a physician restricted him to limited walkin…
The full statement of facts, procedural history, and disposition for this case are member content.
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JOANOS, Judge.
The employer/carrier in this worker’s compensation appeal challenges an award of temporary total disability during a period of time when the claimant was unemployed due to a compensable knee injury. We affirm the deputy’s order and reject the E/C’s argument that physical inability to work is the sole factor in determining temporary total disability.
The evidence reflects that the following took place. Claimant sustained a knee injury on the job yet continued to work until his condition significantly worsened. At that point, he went to a physician, who restricted claimant to limited walking and standing. Claimant tried to return to work but was fired after the supervisor learned of claimant’s limitations. When claimant filed a claim for temporary total disability and medical treatment, the E/C controverted the entire claim refusing to pay even medical benefits. Claimant, therefore, was without funds to" pay for an operation to his knee which his doctor deemed to be necessary. Thus, his activities remained limited and his knee continued to be problematic.
The evidence shows that claimant tried to return to his job, and when he was discharged, tried to find other employment. His testimony, which is consistent with logic, was that employers were unwilling to hire someone currently involved in a worker’s compensation controversy and in need of an operation which would require a fairly lengthy period of recuperation. Although claimant’s physical condition was not so severe as to prohibit him from performing any and all employment, the job market for a person in claimant’s yet unhealed condition did not, according to the evidence, exist.
“Disability” is defined in section 440.-02(9), Florida Statutes (1979) as “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” In his treatise on worker’s compensation law, Professor Larson states:
Inability to get work, traceable directly to a compensable injury, may be as effective in establishing disability as inability to perform work .... Even without to tal medical disability, the two essentials are present: wage loss, and causation of the wage loss by work-connected injury. The fact that the wage loss comes about through refusal or unavailability of employment rather than through incapacity to perform the work does not change the result.
Larson, The Law of Workmen’s Compensation, Volume 2, § 57.61.
The E/C has argued that there must be medical evidence of temporary total disability in order for an award of TTD to be made. The cases cited by the E/C do not support this contention, but merely stated that in the absence of medical evidence, the claimant must attempt to return to work or locate other employment. This the claimant has done, without success, and the evidence shows that his inability to find work is the direct result of his compensable injury.
AFFIRMED.
ERVIN and WENTWORTH, JJ., concur.
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Holiday Care Ctr. v. Scriven, 418 So. 2d 322 (Fla. 1st DCA 1982)…l disability benefits when the unemployed claimant was able to work and could not find work, due apparently to the unavailability of work. E.g., Sanford Nursing & Convalescent Center, supra, 405 So. 2d at 281. But see Fellows, Read & Weber v. Lance, 406 So. 2d 1286 (Fla. 1st DCA 1981). We but recognize that there are significant doctrinal and practical differences between total disability and partial disability, chief among those being the ability to work; we recognize that the ability to work is not equivalen…
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Lake Cnty. Comm'rs & U. S. Fid. & Guar. Co. v. Walburn, 409 So. 2d 153 (Fla. 1st DCA 1982)….App. 51, 411 P. 2d 474 (1966); Insurance Company of North America v. Nix, 141 Ga.App. 342, 233 S.E. 2d 468 (1977); Blackmon v. Pantex Manufacturing Corporation, 95 R.I. 389, 187 A. 2d 541 (1963). And see particularly Fellows, Reed & Weber v. Lance, 406 So. 2d 1286 (Fla. 1st DCA 1981). The majority’s interpretation of Section 440.15(3)(b)2, forcing a claimant to prove that his work search was unsuccessful due to his disability, rather than because of unavailability of work could place a well-nigh impossible…
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Clay Hyder Trucking Lines v. Atherton, 450 So. 2d 318 (Fla. 1st DCA 1984)…ting claimant’s drastically reduced ability to cope with the stresses of daily life, both physically and emotionally. In short, it was revealed at the hearing that there was little claimant could do in the job market, Fellows, Read & Weber v. Lance, 406 So. 2d 1286 (Fla. 1st DCA 1981), and the deputy was justified in giving little weight to the “domestic work” in which claimant allegedly engaged, instead considering the activity to be merely charitable. Indeed, this alleged domestic work [*320] amounted to lit…