MARTIN GONZALEZ, APPELLANT,
v.
SEA AIR TOWER RESTAURANT AND OLD REPUBLIC INSURANCE COMPANY, APPELLEES
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Appellant's workers' compensation claim for temporary partial disability benefits for June and July 1980 was reversed because medical evidence showed he was unable to work during those months, while his claim for January-May 1981 benefits was affirmed as supported by competent and substantial evidence.
A claimant is entitled to wage loss and TPD benefits for periods when medical evidence demonstrates inability to work, and post-injury observations of the claimant working cannot retroactively establish employability during earlier periods when medical testimony indicates incapacity.
[1] Medical evidence of a claimant's inability to work during a specific period establishes entitlement to wage loss benefits for that period, and subsequent observations of…
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Join FLexlaw to unlock all legal intelligenceMartin Gonzalez appealed a Deputy Commissioner's denial of wage loss and temporary partial disability benefits for June and July 1980, and wage loss b…
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SHIVERS, Judge.
Appellant appeals the order of the Deputy Commissioner denying his claim for wage loss and TPD benefits for the months of June and July, 1980, and for wage loss benefits for the period from January 5, 1981, to May 28, 1981.
The Deputy Commissioner’s denial of wage loss benefits for the January to May, 1981, period is supported by competent and substantial evidence, and we affirm. However, we reverse as to the denial of benefits for the months of June and July, 1980. The record is devoid of any evidence which suggests that claimant was employable during the months of June or July 1980. The testimony of Dr. Gervin, which represents the only medical evidence in the record concerning claimant’s ability to work before his operation, indicates that claimant was unable to work during the months of June and July, 1980. The Deputy Commissioner’s finding that claimant was observed inside the Sea Air Tower Restaurant giving orders to waitresses on April 30, 1981, is supported by competent and substantial evidence, but that finding does not provide competent and substantial evidence to support the finding that claimant was able to work during June and July of 1980. The denial of benefits for the months of June and July, 1980, is reversed.
We remand the case for a determination of benefits.
McCORD and JOANOS, JJ., concur.