B & J WINDOWS AND NATIONWIDE INSURANCE CO., APPELLANTS,
v.
BILLIE SWEITZER, APPELLEE
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An employer and workers' compensation carrier appealed an order awarding temporary benefits, wage loss, and attorney's fees to an injured worker. The appellate court affirmed the award, holding that an injured worker restricted to part-time work need not travel 40 miles daily to find employment and that the carrier's unjustified denial of benefits supported the attorney's fees award.
An injured worker restricted to part-time employment need not accept such work located unreasonably far from her home. The carrier's denial of benefits despite unrefuted medical evidence that the claimant could only engage in part-time work affords a basis for awarding attorney's fees. The wage loss order was affirmed as modified.
[1] An injured worker is not required to accept part-time employment located a significant distance from their home.
[2] Wage loss benefits may be awarded so long as the claimant continues to lose wages as a result of their inability to obtain or keep employment due to an industrial injury.
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Join FLexlaw to unlock all legal intelligence“it is clear that the claimant was restricted by Dr. Newfield to part-time work which the claimant sought unsuccessfully in her home town.”
Establishes the claimant's medical restriction and unsuccessful local job search
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Join FLexlaw to unlock all legal intelligenceThe claimant was injured and restricted by her physician to part-time work. She sought part-time employment in her home town without success. A vocati…
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[*364] SHAW, Judge.
The employer/carrier appeal a workers’ compensation order awarding temporary benefits, wage loss, and an attorney’s fee predicated upon carrier bad faith.
Portions of the record are inaudible, but it is clear that the claimant was restricted by Dr. Newfield to part-time work which the claimant sought unsuccessfully in her home town. Ms. Sherry Ferber, a vocational rehabilitation specialist, reported that the only part-time work she was able to find within the claimant’s limitations was in New Smyrna Beach, twenty miles from the claimant’s home. The deputy commissioner obviously concluded that it was not incumbent upon an injured worker to accept part-time employment twenty miles from her home, necessitating a daily round trip of forty miles. We agree and conclude that wage loss was properly awarded under these facts. However, paragraph three of the decretal portion of the order should be modified to read, “so long as the claimant continues to lose wages as a result of her inability to obtain or keep employment due to her industrial injury,” instead of, “so long as claims for wage loss benefits are filed.”
The carrier asserts that the deputy erred in excluding claimant’s non-covered employment from consideration for purposes of determining the amount of wage loss benefits due during the months of January through March of 1981. This is a mattér that could have, and should have, been brought to the deputy’s attention within twenty days after copies of the order were mailed to the parties as provided for by section 440.25(4)(a), Florida Statutes (1979). The issue not having been presented to the deputy, we will not consider it now. Dade American Hospital Supply v. Perez, 417 So. 2d 296 (Fla. 1st DCA 1982); Sunland Hospital/State of Florida v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981).
The carrier’s denial of benefits in the face of unrefuted medical evidence that the claimant could engage only in part-time work, which she was unable to find within a reasonable distance from her home, affords a basis for the deputy’s award of attorney’s fees. We do not find a clear abuse of discretion. Florida Erection Services, Inc. v. McDonald, 395 So. 2d 203 (Fla. 1st DCA 1981).
The award, as modified, is AFFIRMED.
ROBERT P. SMITH, Jr., C.J., and ERVIN, J., concur.
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Chain Store Warehouses & Aetna Ins. Co. v. Picard, 431 So. 2d 685 (Fla. 1st DCA 1983)…affirmed for want of a significant contest on the issue below. Stafford Electric Co. v. Fedder, 419 So. 2d 733 (Fla. 1st DCA 1982); Sunland Hospital/State of Florida v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982); see also D & J Windows v. Sweitzer, 420 So. 2d 363 (Fla. 1st DCA 1982); Dade American Hospital Supply v. Perez, 417 So. 2d 296 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981). AFFIRMED. Appellee’s motion for an appellate attorney’s fee is DENIED. § 440.34, F…
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Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fla. Erection Servs., Inc. v. Raymer McDONALD, 395 So. 2d 203 (Fla. 1st DCA 1981)
- Sunland Hospital/State OF Florida v. Garrett, 415 So. 2d 783 (Fla. 1st DCA 1982)
- Acosta Roofing Co. & Lumbermens Mut. Cas. Co. v. Gussie Gillyard, 402 So. 2d 1321 (Fla. 1st DCA 1981)
- Dade Am. Hosp. Supply & Kemper Ins. v. Manuel Perez and the Division of Workers' Compensation, 417 So. 2d 296 (Fla. 1st DCA 1982)