SHARP CONSTRUCTION CO., INC. AND GREAT AMERICAN INSURANCE COMPANY, APPELLANTS,
v.
FELIX PEREZ, APPELLEE
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In this workers' compensation appeal, the court reversed the deputy commissioner's award of wage-loss benefits to an injured heavy equipment operator, finding that the employee voluntarily limited his employment by accepting part-time work at significantly lower wages despite medical clearance to return to his original job.
The court reversed, holding that the employee voluntarily limited his employment and therefore failed to prove that his industrial accident caused his wage loss. Under Florida law, when an employee voluntarily limits income or fails to accept employment commensurate with his abilities, the wages he is able to earn after maximum medical improvement shall be deemed to be the amount he would have earned if he had not limited his income or accepted appropriate employment.
[1] An employee's wage-loss benefits may be reduced if the employee voluntarily limits their income or fails to accept employment commensurate with their abilities after reac…
[2] An employee seeking wage-loss benefits bears the burden of proving that the industrial accident caused the wage loss.
Previewing 2 of 4 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“Section 440.15(3)(b)2 provides that if an employee voluntarily limits his income or fails to accept employment commensurate with his abilities, 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.”
States the controlling statutory provision governing voluntary limitation of earnings in workers' compensation cases.
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Join FLexlaw to unlock all legal intelligenceAppellee suffered a work-related foot injury while employed as a heavy equipment operator earning an average weekly wage of $269. His treating physici…
The full statement of facts, procedural history, and disposition for this case are member content.
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WIGGINTON, Judge.
Appellants, employer/carrier, appeal the deputy commissioner’s finding that appellee is entitled to wage-loss benefits based on a weekly wage of $160. We reverse.
Appellee sustained an injury to his foot in a work related accident while he was employed as a heavy equipment operator with Sharp Construction Co. at an average weekly wage of $269. His treating physicians testified that appellee had reached maximum medical improvement with a thirty percent impairment to his left big toe and that he could return to operating heavy equipment if he would wear safety shoes. However, after making a brief job search, appellee accepted part-time employment at a fish market, doing lawn maintenance and odd jobs for which he is paid $4 per hour. Since taking the part-time employment, Perez, a twenty-one year old bilingual who has two years of college training, has not sought a better position.
Under the facts of this case, we agree with employer/carrier who contend that appellee has voluntarily limited his employment.
Section 440.15(3)(b)2 provides that if an employee voluntarily limits his income or fails to accept employment commensurate with his abilities, 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 deputy commissioner’s award of a thirty percent permanent partial disability finding that there was no medical evidence to indicate that the claimant’s health prevented gainful employment and no indication that a work search would be futile. Similarly, in the case sub judice, there is no medical evidence of any impairment that would prevent appellee from holding a job similar to his pre-injury employment.
Thus, especially in light of the modest job search conducted by appellee, we conclude that appellee failed to carry his burden of proving that his industrial accident caused his wage loss. Compare Cintas Corporation, et al. v. Price, 424 So. 2d 900 (Fla. 1st DCA 1982).
REVERSED.
BOOTH and NIMMONS, JJ., concur.
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I.A.T.S.E. & Claims Ctr. v. Nesselroad, 534 So. 2d 709 (Fla. 1st DCA 1988)…held that where a claimant reached maximum medical improvement with permanent impairment to one arm and performed no job search, his acceptance of a part-time job constituted voluntary limitation of income. Sharp Construction Company, Inc. v. Perez, 429 So. 2d 367 (Fla. 1st DCA 1983), holds that a claimant is not excused from a job search because he has a part-time job which satisfies him. Accordingly, we reverse the deputy’s order awarding wage-loss benefits. Because claimant may in the future perform a pro…
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Stahl v. Se. X-Ray & Risk Mgmt. Servs., Inc., 447 So. 2d 399 (Fla. 1st DCA 1984)…tiary work search rule out of context with the statutory test. Reversed and remanded for proceedings consistent herewith. [*403] ZEHMER, J., concurs. NIMMONS, J., concurs in part & dissents in part with opinion. . Sharp Construction Co. v. Perez, 429 So. 2d 367 (Fla. 1st DCA 1983); Piccadilly Cafeteria v. Polite, 433 So. 2d 591 (Fla. 1st DCA 1983). The latter case involves claimant’s voluntary confinement, absent medical restrictions, to a sin-glc job which, relative to the customary dual employment on whi…1 / 2
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Vantage Pointe & State Farm Fire & Cas. Co. v. Sowers, 463 So. 2d 396 (Fla. 1st DCA 1985)…h after accepting part-time employment. A claimant who seeks wage loss benefits is not excused from the continuing duty of testing his employability simply because he has taken a job with which he is satisfied. Sharp Construction Co., Inc. v. Perez, 429 So. 2d 367 (Fla. 1st DCA 1983). To be eligible for an award of wage loss benefits, a claimant must show not only that he has conducted a good faith work search but that he has not voluntarily limited his income. Regency Inn v. Johnson, 422 So. 2d 870 (Fla. 1s…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cintas Corp. & CNA Ins. Co. v. Price, 424 So. 2d 900 (Fla. 1st DCA 1982)
- Jandy v. Mosley, 413 So. 2d 837 (Fla. 1st DCA 1982)