POMPANO ROOFING CO., INC., APPELLANT,
v.
FREDDIE O'NEAL, APPELLEE
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A workers' compensation appellate court affirmed an award of temporary partial disability benefits calculated at minimum wage, but reversed the award of wage loss benefits beyond the date of maximum medical improvement because that issue was not properly before the deputy and no claim was made for such benefits.
The court affirmed the minimum wage determination under § 440.15(4)(b) but reversed the award of wage loss benefits beyond maximum medical improvement. The deputy lacked authority to award benefits beyond the scope of the agreed hearing, and the employer/carrier bears the burden of proving claimant was capable of securing more remunerative employment.
[1] A deputy in a workers' compensation case may not rule on issues beyond the agreed scope of the hearing.
[2] A deputy may not order payment of wage loss benefits subsequent to the date of maximum medical improvement when permanency is not at issue and no claim for such benefits…
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Join FLexlaw to unlock all legal intelligence“The deputy in the circumstances of this case may not rule on issues which are beyond the agreed scope of the hearing, and it was therefore error to order payment of wage loss benefits subsequent to the date of maximum medical improvement.”
Establishes that the deputy exceeded its jurisdiction by awarding benefits not at issue in the hearing.
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Join FLexlaw to unlock all legal intelligenceClaimant suffered a work-related injury and was determined to have reached maximum medical improvement. During his period of temporary partial disabil…
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WENTWORTH, Judge.
Employer/carrier appeals a workers’ compensation order which we affirm except as to the award of wage loss benefits subsequent to the determined date of maximum medical improvement. No claim was made for such benefits and claimant’s attorney expressly conceded that “permanency” was not at issue. The deputy in the circumstances of this case may not rule on issues which are beyond the agreed scope of the hearing, and it was therefore error to order payment of wage loss benefits subsequent to the date of maximum medical improvement. Cf., Bordo Citrus Products v. VarnaDore, IRC Order 2-3541 (Sept. 20, 1978), cert. denied, 372 So. 2d 466 (Fla.1979).
Employer/carrier also contends that the deputy erred by “deeming,” in accordance with § 440.15(4)(b), Florida Statutes (1979), minimum wage as the amount claimant was able to earn during his period of temporary partial disability.
Section 440.-15(4)(b) was properly invoked, in the circumstances of this case, upon the deputy’s determination that claimant failed to conduct an adequate work search or otherwise sufficiently attempt to return to work. Cf., Leffler v. Grand Union Co., 409 So. 2d 1145 (Fla. 1st DCA 1982). Employment market conditions are generally not cognizable by judicial notice, see United States Sugar Corporation v. Hayes, 407 So. 2d 1079, (Fla. 1st DCA 1982), and the record in the present case lacks an evidentiary predicate for the deputy’s minimum wage finding.
However, the record also lacks any evidentiary predicate which would support a conclusion that claimant was capable of securing more remunerative employment.
We conclude from the provisions of the cited statute that the burden of proof in this regard must be carried by employer/carrier. Having failed to satisfy this burden in the present case, employer/carrier has failed to demonstrate error in the deputy’s finding that claimant was able to secure minimum wage, rather than more remunerative, employment. Claimant has not cross-appealed this finding.
The order appealed is amended so as to delete the language ordering payment of wage loss benefits subsequent to the date of maximum medical improvement, and the order is hereby affirmed as amended.
MILLS and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Regency INN v. Johnson, 422 So. 2d 870 (Fla. 1st DCA 1982)…peated requests for reemployment and an adequate job search. The burden shifted to the E/C to prove that the claimant voluntarily limited her income or failed to accept employment commensurate with her abilities. Pompano Roofing Co., Inc. v. O’Neal, 410 So. 2d 971 (Fla. 1st DCA 1982). These issues presented questions of fact for determination by the deputy commissioner as to which no error has been shown. See, Clay Hyder Trucking v. Persinger, 416 So. 2d 900 (Fla. 1st DCA 1982). The motion for rehearing of t…1 / 2
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Sanlando Util. Corp. & U. S. Fid. & Guar. Co. v. Morris, 418 So. 2d 389 (Fla. 1st DCA 1982)…that he was unable to work, he would have been required to conduct a search for employment, which he failed to do. Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So. 2d 275, 276 (Fla. 1st DCA 1981) (TTD); 2 Pompano Roofing Co., Inc. v. O’Neal, 410 So. 2d 971 (Fla. 1st DCA 1982) (temporary partial disability). Since it is apparent that the claimant is no longer temporarily disabled, the award of remedial care must also be reversed. See Lake County Commissioners v. Walburn, 409 So. 2d 153, 155 (Fla. 1st D…
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Publix Supermarkets, Inc. v. Franklin, 467 So. 2d 1031 (Fla. 1st DCA 1985)…in-come_” (e.s.)3 Leffler v. Grand Union, 409 So. 2d 1145 (Fla. 1st DCA 1982). See also City of Cocoa v. Adams, 419 So. 2d 720 (Fla. 1st DCA 1982); Vida Appliances, Inc. v. Gates, 416 So. 2d 1186 (Fla. 1st DCA 1982); Pompano Roofing Co. v. O’Neal, 410 So. 2d 971 (Fla. 1st DCA 1982). The deputy found that (1) two physicians restricted claimant to light duty jobs not requiring lifting, and further that: (2) “... claimant voluntarily limited her income. I accept the testimony of [carrier witness] Lee Tomson t…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leffler v. Grand Union Co. & Crawford & Co., 409 So. 2d 1145 (Fla. 1st DCA 1982)
- United States Sugar Corp. & Gallagher Bassett Ins. Serv. v. Hayes, 407 So. 2d 1079 (Fla. 1st DCA 1982)