GRINER-WOODRUFF, INC. AND COMMERCIAL UNION INSURANCE COMPANY, APPELLANTS,
v.
ROGER PAYNE, APPELLEE

Fla. 1st DCA | 1984-10-12
No. AX-148
WENTWORTH and NIMMONS, JJ., concur.
457 So. 2d 1120 Florida District Court of Appeal, First District (1984) Caution
Cited by 8 cases

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Holding

The court held that the claimant met his burden to establish wage loss resulted from the compensable injury, and the employer/carrier failed to prove otherwise.


Headnotes

[1] A claimant establishes a prima facie case for wage-loss benefits by demonstrating they have obtained employment commensurate with their abilities and have not voluntarily…

[2] Once a claimant establishes a prima facie case for wage-loss benefits, the burden shifts to the employer/carrier to prove the claimant refused work or voluntarily limited…

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Facts & Procedural History

Claimant, injured in a compensable accident, was awarded wage-loss benefits despite accepting a job within his physical limitations but with lower pay…

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

The employer/carrier in this workers’ compensation case appeal the deputy commissioner’s order which awards claimant wage-loss benefits. We affirm.

Claimant injured his back in a compensable accident on May 15, 1981. Dr. McCarthy, a treating physician, opined that claimant is 10% permanently impaired to the body as a whole as a result of his industrial accident. Dr. McCarthy also opined that, as a result of his accident, claimant is not capable of doing anything but light sedentary work, that claimant could not sit for more than an hour or two at a time, and that claimant is capable of walking only short distances.

The deputy herein accepted Dr. McCarthy’s opinion that claimant has a ratable permanent impairment in an order entered on November 12, 1982. In that same order, the deputy denied claimant’s claim for wage-loss benefits for the period of June 25, 1982, through October of 1982. The deputy found that claimant had voluntarily limited his employment during this period of time and that claimant did not make a good faith effort to return to work. No appeal was taken from that order. Subsequent to the deputy’s order, claimant went through a rehabilitation program at Goodwill. Goodwill found claimant a full-time job with Apcoa working as a ticket taker and cashier at a local airport parking lot. This job allows claimant to stand and sit as he pleases. Claimant testified that he is capable of performing this job, although he still experiences pain. Claimant’s supervisor testified that she has observed claimant in pain while attempting to perform such tasks as inventorying the parking lot or putting on gates. She therefore does not require claimant to perform these tasks as part of his job. Claimant testified that he has not sought other em ployment since beginning his job with Ap-coa.

Claimant made claim for wage-loss benefits for the period of November of 1982 through November of 1983. The employer/carrier defended on the basis that claimant voluntarily limited his income during this period of time and that claimant made an inadequate work search. In the order on review, the deputy found that claimant satisfied his job search requirement by in fact looking for, finding, and accepting employment commensurate with his job skills, his physical ability, and the disability resulting from the industrial accident. The deputy found that the burden therefore shifted to the employer/carrier to show that claimant was not making the highest and best use of his skills within his disability or that claimant is not in fact disabled. Claimant was awarded the wage-loss benefits requested.

The employer/carrier contend that the deputy’s order is error. The employer/carrier assert that claimant had a duty to continue a job search for a position more in keeping with his prior salary and that because claimant admitted he had stopped searching for work after obtaining a job with Apcoa, it was established that claimant voluntarily limited his income. We disagree.

Section 440.15(3)(b)2, Florida Statutes (1980), provides that:

The amount determined to be the salary, wages, and other remunerations the employee is able to earn after reaching the date of maximum medical improvement shall in no case be less than the sum actually being earned by the employee, including earnings from sheltered employment. In the event the employee voluntarily limits his income or fails to accept employment commensurate with his abilities, the salary, wages, and other remuneration the employee is able to earn after the date of maximum medical improvement shall be deemed to be the amount which would have been earned if the employee did not limit his income or accepted appropriate employment. Whenever a wage-loss benefit as set forth in subparagraph 1. may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury.

Here, we find and hold that claimant met his burden of proof to establish that the wage loss claimed was the result of his compensable injury. See generally Topeka Inn Management v. Pate, 414 So. 2d 1184 (Fla. 1st DCA 1982) (this court finding that a claimant’s claimed wage loss during two periods of time in which the claimant worked as a CETA secretary and a nurse’s aide, respectively, was the result of the claimant’s compensable injury, as both the jobs were within the claimant’s prescribed physical limitations and commensurate with the claimant’s abilities). Sub judice, the testimonies of claimant, claimant’s supervisor, and Dr. McCarthy, established a prima facie case that claimant had obtained employment commensurate with his ability and that he had not voluntarily limited his income. See Regency Inn v. Johnson, 422 So. 2d 870, 876 (Fla. 1st DCA 1982), petition for rev. denied, 431 So. 2d 989 (Fla.1983); See also Kyle v. Davis, 435 So. 2d 918, 920 (Fla. 1st DCA 1983) (Ervin, J., concurring in part and dissenting in part). It was then incumbent upon the employer/carrier, if it wished to overcome claimant’s prima facie case, to show that claimant refused work or voluntarily limited his income. Id. The testimony of claimant that he had not looked elsewhere for work since obtaining the job at Apcoa, without more, did not satisfy the employer/carrier’s burden. Accordingly, the deputy’s order is AFFIRMED.

WENTWORTH and NIMMONS, JJ., concur.


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Cited By

  • Waterman v. Interstate Truckers, Inc., 545 So. 2d 408 (Fla. 1st DCA 1989)
    …38 (Fla. 1st DCA 1987); City of Miami v. Simpson, 496 So. 2d 899 (Fla. 1st DCA 1986), review denied, 506 So. 2d 1043 (Fla.1987); Adart South Polybag Manufacturing, Inc. v. Goldberg, 495 So. 2d 826 (Fla. 1st DCA 1986); Griner-Woodruff, Inc. v. Payne, 457 So. 2d 1120 (Fla. 1st DCA 1984); Stahl v. Southeastern X-Ray, 447 So. 2d 399 (Fla. 1st DCA 1984). Once the employee presents evidence of a good faith, albeit unsuccessful, work search or evidence that he is engaged in full-time employment, the burden shifts to…
  • Glynn v. McKENZIE Tank Lines and Hewitt, 511 So. 2d 696 (Fla. 1st DCA 1987)
    …nce of a work search commensurate with his abilities so as to establish prima facie any economic loss, the burden shifts to the employer to show that the claimant either refused work or voluntarily limited his income. Griner-Woodruff, Inc. v. Payne, 457 So. 2d 1120 (Fla. 1st DCA 1984); Publix Supermarkets, Inc. v. Franklin, 467 So. 2d 1031 (Fla. 1st DCA 1985). There is no challenge to the adequacy of the work search preceding Glynn’s initial commission employment. Therefore, the issue in this case is the prese…
  • Payne v. Griner-Woodruff, Inc., 462 So. 2d 518 (Fla. 1st DCA 1985)
    …MILLS, Judge, dissents. I dissent. I would dismiss this appeal because it is moot. See Griner-Woodruff, Inc. v. Payne, 457 So. 2d 1120 (Fla. 1st DCA 1984).…
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