PAN AM TOBACCO CORPORATION AND THE HOME INSURANCE COMPANY, APPELLANTS,
v.
FERNANDO M. BROWN, APPELLEE
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Pan Am Tobacco Corporation and Home Insurance Company appealed a Deputy Commissioner's award of wage loss benefits to Fernando M. Brown following a work-related back injury. The First District Court of Appeal reversed, holding that the claimant failed to demonstrate a good faith job search, which is required to obtain wage loss benefits when the claimant is medically able to work.
The court reversed the award because the record contained no evidence demonstrating that the claimant conducted a good faith job search. When medical evidence shows a claimant is able to work, wage loss benefits require clear evidence that the claimant made a conscientious effort to test earning capacity in the employment market and that wage loss resulted from disability, not lack of available work.
[1] An award of wage loss benefits requires a claimant to demonstrate a conscientious effort to test their earning capacity in the employment market, especially in the absenc…
[2] A claimant seeking wage loss benefits must show that their asserted wage loss is a result of their disability, not merely the unavailability of work.
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Join FLexlaw to unlock all legal intelligence“in the absence of medical evidence indicating that claimant is unable to work, an award of wage loss benefits can be made only if claimant shows that he has made a conscientious effort to test his earning capacity in the employment market and that the asserted wage loss is the result of his disability”
Establishes the legal standard for wage loss benefits when a claimant is medically able to work
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Join FLexlaw to unlock all legal intelligenceBrown sustained a back injury for which the employer/carrier provided initial compensation. He reached maximum medical improvement on February 18, 198…
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SHIVERS, Judge.
Employer/Carrier appeal the order of the Deputy Commissioner (D/C) awarding claimant wage loss benefits.
Claimant sustained a back injury for which the E/C provided initial compensation benefits. Maximum medical improvement (MMI) was reached on February 18, 1981. At that time, claimant’s treating physician advised claimant against engaging in heavy lifting, but concluded that claimant could return to employment involving light duty. Despite the physician’s determination that claimant was able to return to work, he remained unemployed. Claimant then filed a claim for wage loss benefits for the period from April 29, 1981, through June 30, 1981. The D/C awarded wage loss benefits based on a complete loss of earnings for the period beginning on April 29,1981, and continuing for so long as claimant made a good faith rehabilitation effort. This appeal followed.
Appellant contends that there is no competent and substantial evidence in the record to show that claimant conducted a good faith job search or that his unemployment was the result of his disability rather than the unavailability of work.
We reverse because the record is devoid of any evidence which demonstrates that claimant conducted a good faith job search. It is well established that, in the absence of medical evidence indicating that claimant is unable to work, an award of wage loss benefits can be made only if claimant shows that he has made a conscientious effort to test his earning capacity in the employment market and that the asserted wage loss is the result of his disability. Lake County Commissioners, et al. v. Walburn, 409 So. 2d 153 (Fla. 1st DCA 1982), Tallahassee Coca-Cola Bottling Co., et al. v. Parramore, 395 So. 2d 275 (Fla. 1st DCA 1981). Concerning claimant’s ability to work, the evidence clearly establishes that claimant was able to work.
Moreover, with respect to the question of whether claimant conducted a good faith job search, the evidence is equally as clear. By claimant’s own admission he failed to make any attempt to find employment during the period for which he is seeking wage loss benefits. The claimant’s only attempt to conduct a job search occurred prior to the termination of his TTD benefits. This aside, the only other effort claimant made in the direction of seeking employment was to seek the assistance of the Rehabilitation Division of the Bureau of Workers’ Compensation. But, even there, the evidence indicates that claimant failed to follow through on the recommendations of the rehabilitation nurse. On the basis of this evidence, we find that there is no competent and substantial evidence to support a finding that claimant conducted a good faith job search. Because of this finding we do not address the question of whether claimant demonstrated that the asserted wage loss resulted from his disability rather than the unavailability of employment.
The judgment of the D/C awarding claimant wage loss benefits is REVERSED.
McCORD and MILLS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Anderson v. S & S Diversified, Inc., 477 So. 2d 591 (Fla. 1st DCA 1985)…atute in this case collides with opinions in which the statute was not considered but all wage loss was denied for months when work search was absent. Piccadilly Cafeteria v. Polite, 433 So. 2d 591 (Fla. 1st DCA 1983); Pan Am Tobacco Corp. v. Brown, 416 So. 2d 1211 (Fla. 1st DCA 1982); University of West Florida v. Nall, 404 So. 2d 381 (Fla. 1st DCA 1981). Analysis of those cases shows no such manifest conflict. Instead they illustrate the variety of complex evidentiary issues underlying any determination of t…
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Conshor, Inc. v. Barnhart, 422 So. 2d 946 (Fla. 1st DCA 1982)…owever, the requirement of an adequate and good faith work search has not been relaxed, nor has the necessity for production of competent substantial evidence to prove compliance with that requirement. See, e.g., Pan Am Tobacco Corporation v. Brown, 416 So. 2d 1211 (Fla. 1st DCA 1982). It is evident — as the deputy commissioner here recognized in his order4 —that the new act has significantly enhanced the E/C’s burdens with respect to rehabilitation and reemployment of the injured worker. See, Holiday Care Cen…
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Piccadilly Cafeteria & Aetna Cas. & Sur. v. Polite, 433 So. 2d 591 (Fla. 1st DCA 1983)…mpted a work search to establish wage-loss. Without medical evidence indicating an inability to work, an award of wage-loss benefits can be made only if a claimant shows that she has made a good faith job search. Pan Am Tobacco Corporation v. Brown, 416 So. 2d 1211 (Fla. 1st DCA 1982). Having shown no adequate job search, the award of wage-loss benefits is reversed. That part of the order awarding temporary partial disability is supported by substantial competent evidence and is affirmed. Accordingly the o…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tallahassee Coca Cola Bottling Co. & Hartford Ins. Co. v. Parramore, 395 So. 2d 275 (Fla. 1st DCA 1981)
- Lake Cnty. Comm'rs & U. S. Fid. & Guar. Co. v. Walburn, 409 So. 2d 153 (Fla. 1st DCA 1982)