ACREE OIL COMPANY AND CASUALTY RECIPROCAL EXCHANGE, APPELLANTS,
v.
LINDSEY PETERSON, APPELLEE
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In a workers' compensation case, the Florida District Court of Appeal reversed a deputy commissioner's order granting Peterson's petition to modify his permanent partial disability award from 19% to 25% based on loss of wage earning capacity. The court held that Peterson failed to present competent substantial evidence of a substantial change in condition and did not adequately demonstrate a good faith work search effort.
The court reversed the modification order, holding that Peterson presented insufficient competent substantial evidence of a substantial change in condition because his 1983 condition was anticipated by the original diagnosis and no evidence differed from that considered in the 1982 order. Additionally, Peterson's limited work search—only 14 businesses contacted with no dates specified and no attempts in 1984—did not satisfy the requirement of demonstrating a good faith effort to obtain employment within his physical limitations.
[1] A petition for modification of a workers' compensation award requires evidence of a substantial change in condition that was not anticipated by the original diagnosis or…
[2] A claimant must present competent and substantial evidence to support a modification of benefits 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“The change of condition provision in Section 440.28, Florida Statutes (1981), is designed to afford relief to the claimant whose condition becomes progressively worse than anticipated by the original diagnosis or is the product of evidentiary factors not known at the time of the initial proceedings.”
Establishes the legal standard for modification of workers' compensation awards based on change of condition.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePeterson suffered a neck and shoulder injury on February 2, 1973, while loading oil trucks and initially received permanent partial disability benefit…
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, Aeree Oil Company and Casualty Reciprocal Exchange (E/C) appeal from the deputy commissioner’s order granting Peterson’s petition for modification.
The E/C contend that the deputy’s modification of physical impairment based on loss of wage earning capacity is not supported by competent substantial evidence and that she erred in finding that Peterson conducted an adequate work search. We agree and reverse.
On 2 February 1973, while loading oil trucks with fuel, Peterson slipped on a loading platform causing injury to his neck and right shoulder. He received payment for permanent partial disability on a rating of 19 percent to the body as a whole on his original claim. This was followed by another claim requesting a determination of loss of wage earning capacity. The deputy denied this claim by his order of 15 July 1982.
Peterson continued to seek treatment from various physicians and on 6 December 1983 was seen by Dr. Tweed, a neurosurgeon, whom he had earlier consulted in December of 1978. On this date, Dr. Tweed determined that Peterson had undergone a substantial change in his condition. Thereafter, Peterson filed a petition to modify the July 1982 order. The deputy, after considering the testimony of Peterson and Dr. Tweed, found that a substantial change in Peterson’s condition had occurred from a neurological standpoint, and granted an increase in permanent partial disability benefits to 25 percent based on loss of wage earning capacity-
The change of condition provision in Section 440.28, Florida Statutes (1981), is designed to afford relief to the claimant whose condition becomes progressively worse than anticipated by the original diagnosis or is the product of evidentiary factors not known at the time of the initial proceedings. Soloff v. U-Totem, Inc., of Broward, 257 So. 2d 31 (Fla.1972); General Electric Co. v. Osborne, 394 So. 2d 1089 (Fla. 1st DCA 1981).
In the instant case, no evidence other than that considered in the July 1982 order was presented and Peterson’s present condition was anticipated by the original diagnosis.
The only medical witness presented, Dr. Tweed, stated that he had no evidence to show that the physical findings on 6 December 1983 would have been any different than those physical findings that may have existed on 15 July 1982. Moreover, the record reveals that the diagnosis made by Dr. Tweed in 1978 was very similar to that made in 1983. Therefore, Dr. Tweed’s testimony, although coupled with Peterson’s assertions of increased pain, did not provide the deputy with the competent and substantial evidence necessary to sustain his award. See, Swanigan v. Dobbs House, 442 So. 2d 1026 (Fla. 1st DCA 1983).
In order to show a loss of wage earning capacity, claimants must affirmatively demonstrate a good faith effort to obtain employment within their physical limitations. Mahler v. Lauderdale Lakes, 322 So. 2d 507 (Fla.1975).
For the time period of July 1982 until 1983, Peterson was only able to specify 14 businesses contacted for employment and could provide no dates for these applications. Further, it was admitted that no attempts had been made to locate work in 1984.
The work search requirement imposes upon the claimant a continuing duty to test his or her earning capacity in the open labor market. Pan Am Tobacco Corp. v. Brown, 416 So. 2d 1211 (Fla. 1st DCA 1982).
The limited effort on the part of Peterson does not satisfy the work search requirement.
REVERSED.
JOANOS and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rodriguez v. Sheraton BAL Harbour Hotel & Cigna, 509 So. 2d 369 (Fla. 1st DCA 1987)…fore, we cannot find that his search for light work only constituted a voluntary limitation of income, but hold rather that it was an affirmative, good faith effort to obtain employment within his physical limitations. See Acree Oil Co. v. Peterson, 467 So. 2d 346, 348 (Fla. 1st DCA 1985). Appellees also contend that Rodriguez’s inability to earn as much as before the injury was unrelated to his physical limitation, since he voluntarily left his job with the E/C. However, an award of wage loss benefits is no…
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Westwinds Transp., Inc. v. Murphy, 494 So. 2d 519 (Fla. 1st DCA 1986)…y worse when not anticipated by the original diagnosis or 2) is the product of evidentiary factors not known at the time of the initial claim proceeding. Thatcher Glass Co. v. Joseph, 424 So. 2d 68, 69 (Fla. 1st DCA 1982); Acree Oil Co. v. Peterson, 467 So. 2d 346, 347 (Fla. 1st DCA 1985). While cumulative evidence serves no purpose in mistake of fact cases, the rule against such evidence is uniquely applicable to such cases, not to those based on a change of condition. Flesche v. Interstate Warehouse, 411 So…
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Starkman v. Bechtel Power Corp., 588 So. 2d 304 (Fla. 1st DCA 1991)…ly worse when not anticipated by the original diagnosis or is the product of evidentiary factors not known at the time of the initial claim proceeding. Westwinds Transp., Inc. v. Murphy, 494 So. 2d 519 (Fla. 1st DCA 1986); Acree Oil Co. v. Peterson, 467 So. 2d 346 (Fla. 1st DCA 1985); Thatcher Glass Co. v. Joseph, 424 So. 2d 68 (Fla. 1st DCA 1982); City of Tampa v. Morales, 423 So. 2d 571 (Fla. 1st DCA 1982); General Electric Co. v. Osborne, 394 So. 2d 1089 (Fla. 1st DCA 1981). The aforementioned cases should…
Authorities Cited
- Swanigan v. Dobbs House & Am. Motorists Ins. Co., 442 So. 2d 1026 (Fla. 1st DCA 1983)
- Mahler v. Lauderdale Lakes Nat'l Bank, 322 So. 2d 507 (Fla. 1975)
- Gen. Elec. Co. & Elec. Mut. Ins. Co. v. Osborne, 394 So. 2d 1089 (Fla. 1st DCA 1981)
- PAN AM Tobacco Corp. & the Home Ins. Co. v. Brown, 416 So. 2d 1211 (Fla. 1st DCA 1982)
- Soloff v. U-Totem, 257 So. 2d 31 (Fla. 1971)