ALVIE LEE GRIFFIN, APPELLANT,
v.
PARRISH CONSTRUCTION & DOOR SERVICE AND KEMPER INSURANCE COMPANY, APPELLEES
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Griffin appeals a workers' compensation decision denying permanent partial disability benefits exceeding anatomical ratings because he failed to test his employability on the open labor market. The court affirmed, rejecting Griffin's argument that requiring an open labor market job search infringes his federally protected union membership rights.
The court affirmed that Florida workers' compensation law requires claimants to demonstrate wage-earning capacity by testing employability in the open labor market after reaching maximum medical improvement, and this requirement does not violate federal pre-emption or infringe protected union membership rights.
[1] An award of workers' compensation benefits based on reduced wage-earning capacity requires the claimant to demonstrate that they have tested their employability in the op…
[2] A claimant's refusal to seek employment outside of their union, based on a desire to retain union benefits or avoid jeopardizing union rights, does not excuse the require…
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Join FLexlaw to unlock all legal intelligence“an award of compensation based upon the reduction of wage earning capacity requires the claimant to show that he has tested his employability in the open labor market after reaching maximum medical improvement”
Establishes the controlling legal standard that workers must demonstrate employability through open market job search to receive benefits based on reduced earning capacity.
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Join FLexlaw to unlock all legal intelligenceGriffin suffered a work injury and sought permanent partial disability benefits beyond anatomical ratings. He testified he would lose union benefits i…
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JOANOS, Judge.
Claimant appeals from a workers’ compensation order in which he was denied permanent partial disability benefits in excess of the anatomical ratings assigned by the physicians. The deputy commissioner limited the award upon a finding that claimant had failed to test his employability or wage earning capacity on the open labor market.
Claimant Griffin testified that he would lose his union benefits if he accepted nonunion work. He said that he would not take a non-union job if it was available and at the time of the hearing, he had not sought work outside the union. He also testified to missing appointments with rehabilitation personnel, characterized the rehabilitation process as unhelpful because he was not going to work for minimum wage, and stated that he could not look for work since it was against union hiring rules.
Claimant argues on appeal that the requirement that he make a job search outside his union infringes upon his constitutionally and federally protected right to be a union member. He urges that the threshold requirement of an adequate open labor market search forces him to choose between receiving benefits under the act and retaining his union membership and, is, therefore, an intrusion into the federally pre-empted area of labor-management relationships. We disagree and affirm.
The Florida Supreme Court has made it clear that an award of compensation based upon the reduction of wage earning capacity requires the claimant to show that he has tested his employability in the open labor market after reaching maximum medical improvement. Exxon Co. v. Alexis, 370 So. 2d 1128, 1132 (Fla.1978).
Claimant’s challenge based on federal pre-emption is not well-founded.
First, the federal district court decision involving unemployment compensation upon which he relies heavily, Hawaiian Tel. Co. v. State of Hawaii, etc., 405 F.Supp. 275 (D.C.Haw.1975), was reversed on appeal. See Hawaiian Tel. Co. v. State of Hawaii, etc., 614 F. 2d 1197 (9th Cir. 1980).
Also see New York Telephone Co. v. New York Dept. of Labor, 440 U.S. 519, 99 S.Ct. 1328, 59 L.Ed.2d 553 (1979), wherein the U.S. Supreme Court refused to find that the National Labor Relations Act pre-empted the New York state unemployment compensation act despite the recognized impact on the federally protected bargaining process of New York’s requirement that the employer pay unemployment compensation to striking workers. By comparison, in the present case, the impact of the Florida Workers’ Compensation Act, as applied, upon the collective bargaining process is negligible, if not non-existent. Further, in Adams v. Auchter, 339 So. 2d 623 (Fla.1976), the Florida Supreme Court held that unemployment compensation was not payable to a claimant union member who refused to accept a non-union job on the ground that acceptance would jeopardize his union rights. In the Adams case, the Florida Supreme Court affirmed this Court’s opinion, Auchter Co. v. Florida Department of Commerce, Industrial Relations Commission, 304 So. 2d 487 (Fla. 1st DCA 1975).
We note especially Judge McCord’s observation at page 492 of this Court’s opinion in that case, that any infringement of claimant’s rights resulted from union action, not state action. We believe that comment is equally applicable to this case although it involves workers’ compensation rather than unemployment compensation.
AFFIRMED.
ERVIN and WENTWORTH, JJ., concur.
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R.J. Nicolli Painting Co., Inc. v. Potts, 447 So. 2d 371 (Fla. 1st DCA 1984)…ance of non-union jobs. Any infringement of claimant’s rights resulted from union action and claimant’s acceptance of its policy in refusing non-union [*372] employment commensurate with his abilities. Griffin v. Parrish Construction & Door Service, 409 So. 2d 62 (Fla. 1st DCA 1982). Accordingly, the deputy commissioner’s order is REVERSED. SHIVERS and THOMPSON, JJ., concur.…
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Port Carriers, Inc. v. Simmons, 412 So. 2d 910 (Fla. 1st DCA 1982)…cordance with law and affirmed. The employer appeals to this Court. The employer argues that the claimant has not made himself available for work, since he seeks employment only through his union. See Griffin v. Parrish Construction & Door Service, 409 So. 2d 62 (Fla. 1st DCA 1982). The Commission based its decision upon its reading of §§ 443.101 & 443.151 Fla. Stat. (1981) (the chapter was reorganized by the 1980 legislature; for clarity only the current section numbers will be used in this opinion), coup…
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Faust v. Se. Contracting & Door Serv., 468 So. 2d 509 (Fla. 1st DCA 1985)…ffirm in part and reverse in part. As to claimant’s argument that the deputy erred in denying temporary partial disability benefits based on claimant’s failure to search for nonunion work, we affirm. Griffin v. Parrish Construction & Door Service, 409 So. 2d 62 (Fla. 1st DCA 1982). In determining average weekly wage, the deputy combined claimant’s wages and union benefits for the thirteen weeks preceding his accident and divided the total by thirteen. This is the appropriate manner of determining average…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- NEW York Tel. Co. v. N.Y. State Dep't of Labor, 440 U.S. 519 (U.S. 1979)
- Exxon Co. v. Alexis, 370 So. 2d 1128 (Fla. 1978)
- Hawaiian Tel. Co. v. State OF Haw. Dept. OF Labor & Indus. Relations, 614 F.2d 1197 (9th Cir. 1980)
- The Auchter Co. v. Fla. Dep't OF Commerce, 304 So. 2d 487 (Fla. 1st DCA 1974)
- Adams v. The Auchter Co., 339 So. 2d 623 (Fla. 1976)