LYKES BROTHERS, INC., & HARTFORD INSURANCE GROUP, APPELLANTS,
v.
EVELYN D. JACKSON, APPELLEE
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Lykes Brothers and Hartford Insurance appealed a workers' compensation order awarding wage loss benefits to an employee who sustained a cervical spine injury. The court affirmed, holding that the claimant's wage loss was causally related to her industrial injury despite her temporary relocation to North Carolina to care for her injured fiancé.
The court affirmed the deputy's award of wage loss benefits, holding that the claimant's wage loss was causally related to her industrial injury. The claimant's brief employment as an electronics trainee did not reestablish earning capacity, and her relocation to care for her injured fiancé did not demonstrate lack of diligence or voluntary income limitation that would preclude wage loss benefits.
[1] An unavailing work search, sufficiently extensive and intensive, by a permanently impaired worker may meet the statutory requirements for prima facie proof of connection…
[2] A brief term of employment does not in itself reestablish an earning capacity for a permanently impaired worker.
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Join FLexlaw to unlock all legal intelligence“The cause of incapacity to earn may ... be shown by direct or circumstantial evidence.... An unavailing work search, sufficiently extensive and intensive, by a permanently impaired worker such as the [claimant] in this case, may meet the statutory requirements for prima facie proof of connection with permanent physical limitation”
Establishes the legal standard for proving wage loss causally related to industrial injury through work search evidence
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Join FLexlaw to unlock all legal intelligenceClaimant sustained an industrial injury requiring cervical decompression laminectomy while working as an assembly line worker in a meat plant. After m…
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WENTWORTH, Judge.
Employer/carrier seek review of a workers’ compensation order and assert that the deputy erred in awarding benefits upon a determination that claimant’s wage loss is related to her industrial injury. We find that the deputy did not err in this regard, and we therefore affirm the order appealed.
While employed as an assembly line worker in a meat plant claimant sustained an industrial injury which necessitated a cervical decompression lamenectomy. Although she continued to experience pain and muscle spasms claimant was eventually released for work, with permanent impairment and restrictions on certain activity after maximum medical improvement. Her physician was of the opinion that claimant would be unable to return to her former employment. Claimant nevertheless briefly attempted to resume such employment, but found it to be beyond her physical capabilities. She then obtained work as an electronics trainee, which was subsequently terminated after her new employer repeatedly made unreasonable personal demands. In addition, the work environment and physical requirements of the job exceeded claimant’s expectations and capabilities.
Claimant thereafter accepted a job offer from a cleaning service, but prior to commencing such employment was advised that her fiance had experienced a life-threatening accident in North Carolina. She immediately left the state to care for him. He was rendered quadriplegic. They were married and continued to reside in North Carolina, where she has been able to obtain only part-time employment despite an extensive work search. Testifying that such residence is only temporary, claimant suggested that as soon as her husband is able to travel they will return to Florida, where she intends to pursue 'employment with the cleaning service which had offered her a job.
Claimant’s industrial injury resulted in her displacement from and incapacity for her former employment. While there was no direct evidence as to why she was not hired in North Carolina, City of Clermont v. Rumph, 450 So. 2d 573 (Fla. 1st DCA 1984), indicates that:
The cause of incapacity to earn may ... be shown by direct or circumstantial evidence.... An unavailing work search, sufficiently extensive and intensive, by a permanently impaired worker such as the claimant in this case, may meet the statutory requirements for prima facie proof of connection with permanent physical limitation, [fn. omitted]
Claimant’s brief term of employment as an electronics trainee does not in itself reestablish an earning capacity, and the record reflects no rebuttal of the prima facie sufficiency of work search evidence offered by her. See Lasher Milling Co. v. Brown, 427 So. 2d 1034 (Fla. 1st DCA 1983); see also Johnston v. Super Food Services, 461 So. 2d 169 (Fla. 1st DCA 1984). Although claimant had obtained and accepted another job offer within Florida, her sudden departure from the state was not motivated by any desire to avoid work and does not, in the circumstances, show lack of due diligence or voluntary limitation of income precluding the award of wage loss benefits. Cf. Genelus v. Boran, Craig, Schreck Construction Co., 438 So. 2d 964 (Fla. 1st DCA 1983). The deputy was thus entitled to find that claimant’s wage loss is causally related to her industrial injury and not based solely on factors other than physical limitation.
The order appealed is affirmed.
MILLS and SHIVERS, JJ., concur.
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Spartan Elecs. & CNA Ins. Co. v. Russell, 513 So. 2d 153 (Fla. 1st DCA 1987)…the period in question and that her relocation from Mobile to Deland was not a voluntary limitation of income with respect to the present claim. A term of employment alone does not establish continuing ability to earn. Lykes Bros., Inc. v. Jackson, 461 So. 2d 247 (Fla. 1st DCA 1984). Because employer’s plant was either closed or appellee was laid off during two of the 13 weeks prior to her accident, the order incorrectly states in computing her average weekly wage that she worked substantially the whole of…
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Dep't OF Transp. v. Montero, 568 So. 2d 65 (Fla. 1st DCA 1990)…United States, or within the state of Florida. An injured worker is not confined to living in the pre-injury location, and absent an improper motivation a departure therefrom does not preclude compensation benefits. See Lykes Bros. Inc. v. Jackson, 461 So. 2d 247 (Fla. 1st DCA 1984). Claimant’s move to Costa Rica was not shown to have involved any improper motivation, and it was expressly approved by claimant’s treating psychiatrist as potentially aiding claimant’s recovery. The employer/servicing agent’s pr…
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Hurley v. Stuart Fine Foods & Claims Ctr., 687 So. 2d 310 (Fla. 1st DCA 1997)…onable geographic proximity of the claimant’s present home.”2 There is no requirement that a claimant continue to live in her pre-injury residence. Department of Transp. v. Montero, 568 So. 2d 65, 66 (Fla. 1st DCA 1990); Lykes Bros. Inc. v. Jackson, 461 So. 2d 247, 249 (Fla. 1st DCA 1984). In the present case, the JCC made no finding that the move was the result of “improper motivation,”3 and “there is no evidence that claimant’s relocation following h[er] injury was motivated by a desire to avoid work.” Gene…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Clermont & Aetna Ins. Co. v. Rumph, 450 So. 2d 573 (Fla. 1st DCA 1984)
- Johnston v. Super Food Servs. & Fireman's Fund Ins. Co., 461 So. 2d 169 (Fla. 1st DCA 1984)
- Lasher Milling Co. & Fla. Farm Bureau v. Brown, 427 So. 2d 1034 (Fla. 1st DCA 1983)
- Ilfautga Genelus v. Boran, 438 So. 2d 964 (Fla. 1st DCA 1983)