JANDY, INC. AND THE HOME INSURANCE COMPANY, APPELLANTS,
v.
WILLIE MOSLEY, APPELLEE
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The Florida First District Court of Appeal reversed a workers' compensation order awarding permanent partial disability (PPD) benefits based on loss of wage-earning capacity, holding that without a job search or exceptional circumstances, there is no basis to find such a loss. The court also reversed the attorney's fee award as potentially affected by the remanded findings.
The court held that the award of PPD benefits based on loss of wage-earning capacity was erroneous because claimant's complete lack of job search, coupled with the absence of medical evidence preventing employment or exceptional circumstances excusing the search, provided no basis for finding such a loss. The attorney's fee award was also reversed as potentially affected by the remanded findings.
[1] A claimant's failure to conduct a work search, absent exceptional circumstances excusing such a search, provides no basis for finding a loss of wage earning capacity.
[2] Pain alone is an insufficient ground to excuse a claimant's failure to seek employment following a work injury.
Previewing 2 of 5 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“Due to the complete lack of work search and to the absence of exceptional circumstances to excuse such a search, there is no basis for finding a loss of wage earning capacity.”
Establishes the core holding that loss of wage-earning capacity requires either a job search or exceptional circumstances
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 compensable neck injury on April 22, 1972, and initially returned to lighter-duty work before ceasing employment in December 1978…
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THOMPSON, Judge.
The employer/carrier (E/C) appeal a workers’ compensation order, contending that the deputy commissioner (deputy) erred by awarding claimant permanent partial disability (PPD) benefits based on loss of wage earning capacity and erred by awarding claimant an attorney’s fee.
Claimant sustained a compensable injury to his neck on April 22, 1972. Claimant subsequently returned to work for the same employer, but performed a less physically demanding job than the one he performed prior to the accident. However, due to pain claimant ceased working for his employer in December of 1978. Dr. Johns, a neurosurgeon, indicated that claimant had a 6% to 8% PPD of the body as a whole, and that claimant could return to the same position that he held at the time of the injury. Dr. Yates, also a neurosurgeon, indicated that claimant had a 15% PPD. Claimant stated that following maximum medical improvement (MMI) he had not sought employment due to severe pain.
Claimant owns a fish market and a paving business, both of which are operated by his children. Although claimant apparently does not actively participate in the day-today operations of these businesses, he does perform supervisory duties. Claimant re-, ceives a combined weekly sum of $200.00 from these two businesses. The deputy found that this $200.00 was a return on claimant’s capital investment, as opposed to wages. The deputy made no mention of the admittedly complete lack of a job search, and did not excuse claimant’s failure to seek employment. The deputy awarded claimant, inter alia, compensation representing a 30% PPD of the body as a whole based on loss of wage earning capacity.
The deputy erred in awarding claimant 30% PPD of the body as a whole based on loss of wage earning capacity. Due to the complete lack of work search and to the absence of exceptional circumstances to excuse such a search, there is no basis for finding a loss of wage earning capacity. There is no medical evidence in the instant case to indicate that claimant’s health prevents gainful employment and no indication that a work search would be futile. See Exxon Co., U. S. A. v. Alexis, 370 So. 2d 1128 (Fla.1978); Chicken ‘N’ Things v. Murray, 329 So. 2d 302 (Fla.1976). Accordingly, this case is distinguishable from Sizemore v. Canaveral Port Authority, 332 So. 2d 23 (Fla.1976), cited by claimant, where there was medical evidence that the claimant’s health prevented gainful employment. Claimant’s testimony that he could not search for work because he was in pain is an insufficient ground on which to base an excusal of a job search. See Clark v. Western Knapp Engineering Co., 190 So. 2d 334 (Fla.1966); Tallahassee Coca Cola Bottling Co. v. Parramore, 395 So. 2d 275 (Fla. 1st DCA 1981); Brevard County School Board v. King, 378 So. 2d 1312 (Fla. 1st DCA 1980).
The award of PPD benefits based on a loss of wage earning capacity is accordingly reversed and the case is remanded to the deputy to make a finding based solely on claimant’s anatomical impairment. The attorney’s fee awarded by the deputy is likewise reversed as the amount thereof may be affected by the deputy’s finding on remand. See Brevard County Clerk of Court v. Winslow, 399 So. 2d 111 (Fla. 1st DCA 1981). Accordingly, this case is reversed and remanded for proceedings consistent with this opinion.
JOANOS and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Sharp Constr. Co., Inc. v. Perez, 429 So. 2d 367 (Fla. 1st DCA 1983)…bilities, the wages he is able to earn after the date of maximum medical improvement shall be deemed to be the amount which he would have earned if he had not limited his income or if he had accepted appropriate employment. In Jandy, Inc. v. Mosley, 413 So. 2d 837 (Fla. 1st DCA 1982), the doctors testified that the claimant could return to the same position that he had held at the time of the injury, but the claimant testified that due to severe pain he had not sought employment. This Court reversed the deput…
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Standard Indus. Linen Co. & Liberty Mut. Ins. Co. v. Freeman, 419 So. 2d 711 (Fla. 1st DCA 1982)…ever, this court has repeatedly refused to sustain awards of benefits which are based only on subjective but medically unverified claims of inability to work. Holiday Care Center v. Seriven, 418 So. 2d 322 (Fla. 1st DCA 1982); Jandy, Inc. v. Mosley, 413 So. 2d 837 (Fla. 1st DCA 1982) and cases cited therein; Jamar Sportswear v. Miller, 413 So. Newspapers, Inc. v. Rosten, 404 So. 2d 174 (Fla. 1st DCA 1981). Cf. Square G. Construction Company v. Grace, 412 So. 2d 397 (Fla. 1st DCA 1982). Accordingly, the deput…
Authorities Cited
- Chicken'n'things & Ins. Co. of N. Am. v. Martha Murray & the Fla. Dep't of Commerce, 329 So. 2d 302 (Fla. 1976)
- Exxon Co. v. Alexis, 370 So. 2d 1128 (Fla. 1978)
- Tallahassee Coca Cola Bottling Co. & Hartford Ins. Co. v. Parramore, 395 So. 2d 275 (Fla. 1st DCA 1981)
- Sizemore v. Canaveral Port Auth., 332 So. 2d 23 (Fla. 1976)
- Clark v. W. Knapp Eng'g Co. & the Fla. Indus. Comm'n, 190 So. 2d 334 (Fla. 1966)
- Brevard Cnty. Clerk OF Court & U. S. Fid. & Guar. Co. v. Winslow, 399 So. 2d 111 (Fla. 1st DCA 1981)
- Fink v. Gulf Ins. Co., 378 So. 2d 1312 (Fla. 3d DCA 1980)
- Brevard Cnty. Sch. Bd. & The Hartford Ins. Grp. v. King, 378 So. 2d 1312 (Fla. 1st DCA 1980)