FORMING CONTRACTORS AND OLD REPUBLIC INSURANCE COMPANY, APPELLANTS,
v.
THOMAS BARRY, APPELLEE
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The court held that claimant's subjective testimony of inability to work was insufficient to establish entitlement to temporary total disability benefits when contradicted by medical testimony, and reversed the award of such benefits.
The employer/carrier appealed an award of temporary total disability benefits and the determination of the claimant's average weekly wage. The claiman…
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WIGGINTON, Judge.
In this workers’ compensation appeal, the employer/carrier challenge the deputy commissioner’s award of temporary total disability benefits to claimant and her determination of claimant’s average weekly wage. We reverse as to the award of temporary total disability benefits. During the periods of time in question, the record reveals medical testimony as to claimant’s ability to work. Claimant’s subjective testimony as to his inability to work, and especially in light of the medical testimony to the contrary, is insufficient to establish his entitlement to TTD benefits. Lake County Commissioners v. Walburn, 409 So. 2d 153 (Fla. 1st DCA 1982); cf. Square G. Construction Co. v. Grace, 412 So. 2d 397 (Fla. 1st DCA 1982).
Further, we must reverse the sufficiency of the job search as claimant failed to show either that his work search was successful, but that he was unable to perform the work due to his disability, or that his work search was unsuccessful due to his disability rather than the unavailability of work. Lehigh Corporation v. Byrd, 397 So. 2d 1202 (Fla. 1st DCA 1981). The evidence contained in the record clearly establishes claimant’s ability to work, refuting any claim of total incapacity during the relevant time periods which would otherwise support an award of TTD benefits. Kennedy & Cohen v. Porter, 380 So. 2d 495 (Fla. 1st DCA 1980).
As to the deputy’s determination of claimant’s average weekly wage based on an alleged stipulation, there is no evidence in the record, and both parties dispute the existence of any stipulation to that effect. Accordingly, we also reverse and remand that portion of the deputy’s order for rede-termination of claimant’s average weekly wage.
JOANOS and THOMPSON, JJ., concur.
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Holiday Care Ctr. v. Scriven, 418 So. 2d 322 (Fla. 1st DCA 1982)…re was no other evidence that she could not then gainfully work, she was no longer totally disabled and unable, in any anatomic sense, to work. For that reason temporary total disability benefits were no longer payable. Forming Contractors v. Barry, 413 So. 2d 132 (Fla. 1st DCA 1982); Sanford Nursing & Convalescent Center v. Lowery, 405 So. 2d 280 (Fla. 1st DCA 1981); see also (applying pre-1979 law) Walter Glades Condominium v. Morris, 393 So. 2d 664 (Fla. 1st DCA 1981); Cling Electric, Inc. v. Jones, 376 So…
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Sanlando Util. Corp. & U. S. Fid. & Guar. Co. v. Morris, 418 So. 2d 389 (Fla. 1st DCA 1982)…bare complaints of pain will not excuse a search for employment, Lindsley Home Care Centers v. Fuster, 413 So. 2d 810 (Fla. 1st DCA 1982), especially in the face of medical testimony as to a claimant’s ability to work. Forming Contractors v. Barry, 413 So. 2d 132 (Fla. 1st DCA 1982). Further, this case does not fall within the narrow situation excusing a work search noted in Square G. Construction, supra, at 399-400 at n. 4, wherein a claimant sought TTD benefits for a very limited six-week period without a…
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Mauricio A. Arze v. Soheila Sadough-Arze, 789 So. 2d 1141 (Fla. 4th DCA 2001)…en the minor child attains the age of eighteen, as well as a provision that the atuard may be terminated if the party in residence remarries. See Kirkland, 568 So. 2d at 496; Messal v. Messal, 424 So. 2d 932, 934 (Fla. 1st DCA 1983); White v. White, 413 So. 2d 132 (Fla. 1st DCA 1982); Savage v. Savage, 556 So. 2d 1213, 1214 (Fla. 2d DCA 1990); Harvey v. Harvey, 411 So. 2d 324, 325 (Fla. 5th DCA 1982). It is error to extend exclusive use and possession of the marital home beyond the attainment of majority of a…
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
- Lehigh Corp. & U. S. Fid. & Guar. Co. v. Byrd, 397 So. 2d 1202 (Fla. 1st DCA 1981)
- Square G. Constr. Co. & U. S. Fid. & Guar. Co. v. Handsome Grace, 412 So. 2d 397 (Fla. 1st DCA 1982)
- Lake Cnty. Comm'rs & U. S. Fid. & Guar. Co. v. Walburn, 409 So. 2d 153 (Fla. 1st DCA 1982)
- Kennedy & Cohen & Old Republic Ins. Co. v. Porter, 380 So. 2d 495 (Fla. 1st DCA 1980)