JERRY JOHNSTON, APPELLANT,
v.
SUPER FOOD SERVICES AND FIREMAN'S FUND INSURANCE COMPANY, APPELLEES

Fla. 1st DCA | 1984-12-10
No. AX-342
WENTWORTH, J., concurs., NIMMONS, J., dissents with written opinion.
461 So. 2d 169 Florida District Court of Appeal, First District (1984) Positive Treatment
Cited by 34 cases

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Synopsis

A worker injured in an industrial accident claims wage-loss benefits after being discharged for absenteeism and tardiness. The Florida Court of Appeal reversed the deputy commissioner's denial of benefits, holding that wage loss is not automatically precluded when discharge involves non-injury-related factors, and remanded for reconsideration of whether the claimant established a causal connection between the injury and unemployment.


Holding

The court reversed the denial of wage-loss benefits, holding that the award is not automatically precluded by the presence of non-injury-related factors such as discharge for just cause. Instead, the deputy commissioner must examine the totality of circumstances and claimant's work search evidence to determine whether a causal relationship exists between the injury and the wage loss.


Headnotes

[1] Wage-loss benefits are not precluded when wage loss, occurring after a period of successful post-injury employment, is attributable in part to a non-injury-related factor…

[2] Whether a claimant has shown a causal relationship between an industrial injury and a change in employment status is a factual question for the deputy commissioner.

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Key Quotes

“The award of wage-loss benefits is not precluded simply because the wage loss, occurring after a period of successful post-injury employment, is attributable in some part to a non-injury-related factor such as economic conditions, seasonal layoff or discharge for a just cause such as excessive absenteeism.”

Establishes the core legal rule that wage-loss benefits are not automatically barred by non-injury-related factors.

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Facts & Procedural History

Jerry Johnston suffered a crushing injury to his left hand while working as a warehouse worker for Super Food Services. After surgery, his hand retain…

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

Claimant appeals the deputy commissioner’s order denying wage-loss benefits. We reverse and remand this cause to the deputy for determination of whether claimant’s loss of wages was due to physical limitation related to his industrial accident.

Claimant suffered a crushing injury to his left hand while employed as a warehouse worker for appellee, Super Food Services. He returned to work for the same employer but experienced difficulty due to the clawlike posture of his hand. Surgery failed to restore full extension to claimant’s hand which at maximum medical improvement evinces minimal clawing and residual weakness meriting an impairment rating of 4% of the body as a whole. Claimant was subsequently discharged by the employer, purportedly on the grounds of excessive absenteeism and tardiness. The discharge was upheld by the claimant’s union.

After his discharge, the claimant conducted an unsuccessful work search and entered a vocational training course provided by the Veterans Administration.

At the hearing held on claimant’s claim for wage-loss benefits1 from the time of his discharge, the employer/carrier took the position that the wage loss was not attributable to the injury but to his discharge for good cause. The deputy concurred with this position, finding that the wage loss, if any, was not causally related to the injury and that the claimant had demonstrated a post-injury earning capacity equal to or greater than prior to injury. Wage-loss benefits were denied accordingly-

The award of wage-loss benefits is not precluded simply because the wage loss, occurring after a period of successful post-injury employment, is attributable in some part to a non-injury-related factor such as economic conditions, seasonal layoff or discharge for a just cause such as excessive absenteeism. Plymouth Citrus Products v. Woodard, 450 So. 2d 317 (Fla. 1st DCA 1984); Williams Roofing, Inc. v. Moore, 447 So. 2d 968 (Fla. 1st DCA 1984); Lasher Milling Co. v. Brown, 427 So. 2d 1034 (Fla. 1st DCA 1983). This court set forth the governing rule in Williams Roofing:

Whether a claimant has shown a causal relationship between the injury and a change in employment status is a factual question to be determined by the deputy commissioner from competent substantial evidence. The presence or absence of any particular fact, such as a layoff due to economic conditions, should not be legally determinative of the deputy commissioner’s finding. Rather, the deputy commissioner must look to the totality of the circumstances to determine whether a claimant has shown a causal relationship between the injury and the wage loss.

(e.s.) 447 So. 2d at 972-73.

The order appealed does not clearly indicate whether the claimant’s work search evidence was considered on the issue of a causal connection between injury and wage loss or whether the deputy proceeded under the impression that the fact of discharge for a cause unrelated to the injury established the absence of any causal relationship as a matter of law. We note, however, that the deputy’s ruling preceded and was reached without benefit of our decision in Williams Roofing. Consequently, we remand the cause for consideration of claimant’s work search evidence in order to determine whether claimant has established the requisite causal connection between his unemployment and the industrial injury. See Carruth v. Allied Products Co., 452 So. 2d 634 (Fla. 1st DCA 1984).

WENTWORTH, J., concurs.

NIMMONS, J., dissents with written opinion.

. Claimant also filed a claim for rehabilitation benefits which was denied as premature by the order appealed. The propriety of that denial has not been raised by the claimant on appeal and is, therefore, not before this court.

Dissent
NIMMONS, J.,

NIMMONS, J.,

dissenting.

As the deputy commissioner found, this claimant was able to return to work for the same employer in his pre-accident position at the same or greater wage. Although he was able to perform the work, he was eventually terminated because of excessive tardiness and absenteeism. It is clear from the record in this case that the termination of the claimant was not a subterfuge on the part of the employer but was precipitated by the claimant’s repeated conduct which had nothing to do with his injury. Moreover, I am of the view that the claimant’s work search evidence was not such as would satisfy his burden of proving that the claimed loss of wages was caused by the injury. I would therefore affirm the denial of wage loss benefits.


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Citator

Cited By (17 total)

  • Betancourt v. Sears Roebuck & Co. & Kemper Ins. Co., 693 So. 2d 680 (Fla. 1st DCA 1997)
    …he wage loss is attrib [*684] utable to a reason unrelated to the injury, such as economic factors, seasonal layoff, or discharge for good cause. Williams Roofing, Inc. v. Moore, 447 So. 2d 968, 972 (Fla. 1st DCA 1984); Johnston v. Super Food Sens., 461 So. 2d 169, 170 (Fla. 1st DCA 1984). A claimant may still be entitled to benefits if the compensable injury left the claimant in a condition which precludes employment within his or her abilities at his or her prior wage. Sparks v. Alumd Shield Indus., 523 So.…
  • Vencor Hosp. & Sentry Claims Serv. v. Ahles, 727 So. 2d 968 (Fla. 1st DCA 1998)
    …d Industries, 523 So. 2d 680 (Fla. 1st DCA 1988) (claimant justifiably fired for insubordination); Western Union Telegraph Company v. Perri, 508 So. 2d 765 (Fla. 1st DCA 1987)(claimant suspended for insubordination); Johnston v. Super Food Services, 461 So. 2d 169 (Fla. 1st DCA 1984)(claimant terminated for excessive absenteeism). At issue here are temporary partial disability benefits under statutory provisions that also look to whether a compensable physical limitation contributes to wage loss. To be elig…
    1 / 2
  • Whalen v. U.S. Elevator & U.S. Fid. & Guar. Co., 486 So. 2d 670 (Fla. 1st DCA 1986)
    …g Plymouth Citrus Products v. Woodard, 450 So. 2d 317 (Fla. 1st DCA 1984); Williams Roofing, Inc. v. Moore, 447 So. 2d 968 (Fla. 1st DCA 1984); Lasher Milling Co. v. Brown, 427 So. 2d 1034 (Fla. 1st DCA 1983). Johnston v. Super Food Services, Inc., 461 So. 2d 169, 170 (Fla. 1st DCA 1985). Whatever temporary period of unemployment might be attributable solely to unrelated dislocation would logically end upon proof of prima facie injury connection by continued wage loss after a good faith job search by one who…

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