KURTZ PLUMBING & HEATING, INC. AND MICHIGAN MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
EDWIN LYONS, APPELLEE
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In a workers' compensation appeal, the Florida First District Court of Appeal affirmed an award of permanent total disability benefits to an injured worker, holding that substantial evidence of physical deterioration combined with an unsuccessful job search justified modification of a prior permanent partial disability award.
A subsequent adequate job search alone is insufficient grounds for modification based on change in condition; however, where a claimant presents competent substantial evidence of physical deterioration coupled with an unsuccessful job search, modification based on change in condition is proper and justified.
[1] A claimant seeking modification of a workers' compensation order based on a change in condition must present evidence of a change in physical condition or wage earning ca…
[2] A subsequent adequate job search alone is insufficient to justify modification of a workers' compensation order based on a change in condition.
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“a subsequent adequate job search alone is an insufficient ground for modification based on a change in condition”
Establishes the legal principle that merely conducting a later job search cannot alone justify modification without evidence of changed physical condition.
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Join FLexlaw to unlock all legal intelligenceLyons suffered an industrial injury on November 10, 1973. In 1982, a deputy awarded permanent partial disability benefits based on 60% anatomical impa…
The full statement of facts, procedural history, and disposition for this case are member content.
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MILLS, Judge.
In this workers’ compensation action, the employer/carrier appeal from a modification order awarding permanent total disability benefits. We affirm.
Lyons was injured in an industrial accident on 10 November 1973. In 1982, the deputy issued an unappealed order awarding permanent partial disability benefits based on a 60 percent anatomical impairment of the body as a whole.
The deputy refused to assess any permanent disability based on loss of wage earning capacity, finding Lyons did not conduct an adequate job search. The refusal, however, was without prejudice, pursuant to Flesche v. Interstate Warehouse, 411 So. 2d 919 (Fla. 1st DCA 1982), to raise the issue again at a later date.
Subsequently, Lyons petitioned for modification, pursuant to Section 440.28, Florida Statutes (1983), alleging a change in physical condition and wage earning capacity. At the hearing on the petition, evidence of Lyons’ physical condition and evidence of a subsequent unsuccessful job search were admitted.
The deputy modified the 1982 order. He awarded permanent total disability benefits based on his finding that Lyons suffered a total loss of wage earning capacity.
The employer/carrier argue, among other things, that a subsequent adequate job search alone is an insufficient ground for modification based on a change in condition. We agree.
While Flesche holds that a finding of an inadequate job search is not res judi-cata, it does not hold that the mere fact of a subsequent adequate job search justifies modification. A claimant seeking modification based on a change in condition must show some evidence of a change in physical condition or wage earning capacity. Hall v. City of Jacksonville, 443 So. 2d 326 (Fla. 1st DCA 1983).
But, in this case, there is competent substantial evidence that Lyons’ physical deterioration was substantial, greater than anticipated, and reduced his wage earning capacity. Thus, modification based on a change in condition was proper. The physical deterioration, coupled with the subsequent unsuccessful job search, was competent substantial evidence of permanent total disability.
The employer/carrier also challenge the deputy’s finding that the subsequent job search was adequate. From the evidence presented, we cannot say the deputy erred in deciding this essentially factual issue in favor of Lyons. See, Whitehall Corporation v. Davis, 448 So. 2d 47 (Fla. 1st DCA 1984).
AFFIRMED.
JOANOS and BARFIELD, JJ., concur.
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Chastain v. Scandinavian Health Spas & Am. States Ins., 659 So. 2d 1381 (Fla. 1st DCA 1995)…e challenged finding is supported by competent substantial evidence. Swanigan v. Dobbs House, 442 So. 2d 1026 (Fla. 1st DCA 1983); see also, e.g., Soloff v. U-Totem, Inc. of Broward, 257 So. 2d 31 (Fla.1971); Kurtz Plumbing & Heating, Inc. v. Lyons, 465 So. 2d 635 (Fla. 1st DCA 1985). Because there is such evidence in the present case, the appealed order is affirmed. ALLEN and DAVIS, JJ., and SHIVERS, Senior Judge, concur.…
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Malm v. Holiday Theatres & Safeco Ins. Co., 560 So. 2d 270 (Fla. 1st DCA 1990)…. A change in condition encompasses a change in wage earning capacity, even though the claimant’s physical condition remains unchanged. Hall v. City of Jacksonville, 443 So. 2d 326, 327 (Fla. 1st DCA 1983); Kurtz Plumbing and Heating, Inc. v. Lyons, 465 So. 2d 635, 636 (Fla. 1st DCA 1985). Here, Malm was found permanently totally disabled by order entered in October 1983, based on massive neurological, visual [*272] and psychiatric impairment resulting from the compensable skull fracture. However, it is undi…
Authorities Cited
- Flesche v. Interstate Warehouse & U. S. Fid. & Guar. Co., 411 So. 2d 919 (Fla. 1st DCA 1982)
- Hall v. City OF Jacksonville & Travelers Ins. Co., 443 So. 2d 326 (Fla. 1st DCA 1983)
- Whitehall Corp. (Crystek Corp.) & Travelers Ins. Co. v. Davis, 448 So. 2d 47 (Fla. 1st DCA 1984)