FLORIDA MINING & MINERALS AND WHITING NATIONAL SERVICES, INC., APPELLANTS,
v.
FOSTER BRANTLEY, APPELLEE
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A Florida workers' compensation appeal where the employer/carrier challenged an award of temporary partial and temporary total disability benefits to an injured worker. The court affirmed the award and rejected the claimant's constitutional challenge to the attorney's fees statute.
The court affirmed the award of temporary partial and temporary total disability benefits, finding the evidence sufficient to support a finding that the claimant's inability to obtain employment was due, at least in part, to his prior injury or disabled condition. The court rejected the constitutional challenge to the attorney's fees statute as without merit.
[1] Direct proof of rejection for employment due to a disability is not required when other evidence supports the finding that the inability to obtain employment is at least…
[2] The extent and intensity of a claimant's job search can be sufficient to shift the burden to the employer/carrier to demonstrate the availability of suitable work within…
Previewing 2 of 3 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“Although there is no direct proof of rejection for a job because of his disability, such direct proof of this essential element has not been required by prior decisions of this court.”
Establishes that direct proof of disability-related job rejection is not required in workers' compensation temporary disability cases
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe claimant sustained a compensable injury and was discharged by his employer on August 28, 1980, on non-injury-related grounds while still recoverin…
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LARRY G. SMITH, Judge.
The employer/carrier appeal a workers’ compensation order awarding temporary partial and temporary total disability benefits to the claimant. In addition, the claimant, by a separate motion, seeks an award of attorney’s fees on appeal, contending that Section 440.34, Florida Statutes (1979 Amendment) is unconstitutional as applied to deny attorney’s fees to the claimant on appeal, in controvention of Article I, Sec tion 21, “Access to courts,” Florida Constitution. We affirm the order appealed, and deny the constitutional challenge.
The E/C’s chief complaint with respect to the claimant’s job search evidence is that the claimant was never told by any prospective employer that he was being refused employment because of his disability.
The evidence discloses that the claimant undertook a job search after being discharged by his employer on August 28,1980 (on non-injury related grounds) while he was still recovering from the compensable injury. His job search efforts extended over a period of several months, during which time he visited the Florida State Employment Service every week, and included contact with some 22 prospective employers before he was finally successful in landing a job. Even the E/C admits that the claimant engaged in bona fide work search efforts.
Moreover, although there is no direct proof of rejection for a job because of his disability, such direct proof of this essential element has not been required by prior decisions of this court. See, for example, Lehigh Corp. v. Byrd, 397 So. 2d 1202 (Fla. 1st DCA 1981); Coca-Cola Company—Foods Division v. Lucien, 399 So. 2d 1023 (Fla. 1st DCA 1981); and Palm Beach Newspapers Inc. v. Roston, 404 So. 2d 174 (Fla. 1st DCA 1981). This court alluded to the inherent difficulties in obtaining direct evidence showing the specific reason for rejection by an employer in Flesche v. Interstate Warehouse, 411 So. 2d 919, 925 (Fla. 1st DCA 1982), particularly footnote 13.
The evidence here does show that every job application the claimant submitted had questions regarding previous injuries, and at least one, possibly two, prospective employers specifically questioned him about his injuries. No doubt other factors entered into denial of the claimant’s application for some of the jobs sought. We think the evidence was sufficient, however, to support a finding that the claimant’s inability to obtain employment was due, at least in part, to the fact of his prior injury, or his disabled condition, or both.
Furthermore, the extent and intensity of claimant’s job search was more than adequate to shift to the E/C the burden of demonstrating that suitable work within the claimant’s limitations was available. Wright v. Gulf and Western Food Products, 401 So. 2d 1316 (Fla.1981).
Finally, we have examined appel-lee’s motion challenging the attorney’s fees statute, and find it without merit. We note particularly that if, as appellee suggests, he would be entitled to attorney’s fees below under this court’s ruling in Dolphin Tire Company v. Ellison, 402 So. 2d 36 (Fla. 1st DCA 1981), it would not have been impossible for him to have received a determination to that effect prior to the perfection of the E/C’s appeal. See Embry-Riddle Aeronautical University v. Vestal, 399 So. 2d 1033 (Fla. 1st DCA 1981).
MILLS and SHAW, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Regency INN v. Johnson, 422 So. 2d 870 (Fla. 1st DCA 1982)…n Lehigh, where it appeared that the employee remained unemployed for reasons other than because of his disability, his work search evidence was held inadequate. This does not mean, however, as pointed out in Florida Mining and Minerals v. Brantley, 418 So. 2d 352 (Fla. 1st DCA 1982), that direct proof by the employee that he has been rejected for a job because of his disability is required as an essential evidentia-ry element in proving wage loss. Finally, with respect to the Lehigh and Walburn decisions, we…
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Hankison v. Univ. OF Fla. & Crawford & Co., 432 So. 2d 699 (Fla. 1st DCA 1983)…arch was more than adequate to shift to the employer/carrier the burden of demonstrating that suitable work within appellant’s limitations was available, a burden employer/carrier did not meet in this case. See Florida Mining & Minerals v. Brantley, 418 So. 2d 352 (Fla. 1st DCA 1982). Compare also this Court’s discussion in Holiday Care Center v. Scriven, 418 So. 2d 322 (Fla. 1st DCA 1982), of the special circumstance of an injured person who is attempting to find a job while still recovering. Thus, appellant…
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Martinez v. Lake Park Auto Brokers, Inc., 60 So. 3d 533 (Fla. 1st DCA 2011)…sful job search. This court has never required direct proof of such a connection; rather, this is a finding that may be inferred from a claimant’s inability to find employment after an exhaustive job search. See Fla. Mining and Minerals v. Brantley, 418 So. 2d 352, 353 (Fla. 1st DCA 1982) (“[Although there is no direct proof of rejection for a job because of [Brantley’s] disability, such direct proof of this essential element has not been required by prior decisions of this court.”). The job search must, howe…
Authorities Cited
- Flesche v. Interstate Warehouse & U. S. Fid. & Guar. Co., 411 So. 2d 919 (Fla. 1st DCA 1982)
- Lehigh Corp. & U. S. Fid. & Guar. Co. v. Byrd, 397 So. 2d 1202 (Fla. 1st DCA 1981)
- Embry-Riddle Aeronautical Univ. & the Hartford Ins. Grp. v. Vestal, 399 So. 2d 1033 (Fla. 1st DCA 1981)
- Dolphin Tire Co. & Sentry Ins. Co. v. Ellison, 402 So. 2d 36 (Fla. 1st DCA 1981)
- Tillman Wright v. Gulf & W. Food Prods. & Risk Mgmt. Servs., Inc., 401 So. 2d 1316 (Fla. 1981)
- Palm Beach Newspapers, Inc. v. Roston, 404 So. 2d 174 (Fla. 1st DCA 1981)
- The Coca-Cola Company-Foods Div. v. Lucien, 399 So. 2d 1023 (Fla. 1st DCA 1981)