SIGMA CON COMMERCIAL DIVISION AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
FRED E. CALHOUN, JR., APPELLEE

Fla. 1st DCA | 1985-09-17
No. BE-160
L. SMITH and BARFIELD, JJ., concur.
475 So. 2d 733 Florida District Court of Appeal, First District (1985) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Sigma Con and Liberty Mutual appealed a workers' compensation award of wage-loss benefits based on deemed earnings to an injured claimant. The court affirmed, holding that even where a claimant's job search was deemed inadequate, wage-loss benefits based on deemed earnings could be awarded when the wage loss was attributable to medical restrictions rather than solely to the claimant's conduct.


Holding

The court affirmed the award of wage-loss benefits based on deemed earnings. The court held that where medical evidence shows a claimant has work restrictions and wage loss is attributable to those medical restrictions rather than solely to the claimant's inadequate job search, the deputy properly awards benefits for that portion of wage loss caused by the medical restriction.


Headnotes

[1] Workers' compensation wage-loss benefits may be awarded based on deemed earnings even if the claimant's job search was found to be inadequate, provided the wage loss is a…

[2] A claimant's voluntary income limitation does not preclude an award of wage-loss benefits if the loss is also attributable to medical restrictions.

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Key Quotes

“the DC awarded benefits only for that portion of wage loss attributable to claimant's medical restriction”

Establishes the court's key holding that wage-loss benefits can be awarded based on medical restrictions even with an inadequate job search

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Facts & Procedural History

The claimant was injured in a compensable workers' compensation accident on March 27, 1981. After March 31, 1984, the employer/carrier suspended wage-…

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

The employer/carrier (E/C) appeal the deputy’s award of wage-loss benefits based on deemed earnings. We affirm.

The claimant in this workers’ compensation case was injured in a compensable accident on March 27, 1981, and was paid both TTD and wage-loss benefits by the E/C through March 31, 1984. After that date, the E/C suspended all benefits on the basis that the claimant had not undertaken a good-faith job search, had voluntarily limited his income, and had not shown any wage loss connected to or resulting from his compensable injury. Claimant filed a claim for wage-loss benefits and a hearing was conducted before the deputy.

The evidence presented at the hearing indicated that claimant began a course of study in “mid-management” at Indian River Community College in August of 1982. He continued his studies at the college despite the recommendation of the carrier’s rehabilitation counselor that a mid-management degree would yield employment outside of claimant’s physical limitations.

Claimant testified that he searched for sales-or clerical-type work from April 1, 1984 through September 30, 1984. He did not look for work in April, May or June of 1984 as he was in school at the time. He estimated that he contacted approximately 20-25 employers during that period of time. The written list admitted into evidence documented only 11 contacts. The evidence also showed that, prior to moving to Florida, claimant worked in New York as a flooring and carpet salesman and made approximately $20,000 one year. The only medical evidence presented was the deposition of Dr. Stalker and the office notes of Drs. Stalker and Fraraccio (claimant’s treating orthopedic surgeons). In his deposition, Dr. Stalker referred to a March 23, 1984 office note which stated:

W.C. called to find out if patient could be released to light duty of any kind. Dr. Fraraccio said he could do light duty with restrictions of no lifting over 20 pounds, no bending, stooping, squatting, kneeling, no prolonged standing. The most likely job would be that of a clerical-type position, or one that requires periods of standing with breaks allowed for sitting.

In his final order, the deputy found that claimant had applied for appropriate jobs considering his physical limitations, but that he had failed to conduct an adequate job search in light of the number of contacts made. Despite the finding of an inadequate job search, the deputy determined the claimant to have deemed earnings of $160 per week and awarded wage-loss benefits based on his deemed earnings.

The E/C now argue on appeal that it was error for the deputy to apply the deemed earnings provision and to award wage-loss benefits where he specifically found that claimant had not performed an adequate job search. In support of this argument the E/C cite D & R Builders v. Quetglas, 449 So. 2d 988 (Fla. 1st DCA 1984). Further, appellants argue that claimant failed to show that his wage loss was attributable to any medical restrictions and, therefore, that he should not be excused from a job search to the extent allowed in Publix Supermarkets, Inc. v. Franklin, 467 So. 2d 1031 (Fla. 1st DCA 1985).

We disagree. The medical evidence presented in this case indicates that claimant was restricted as to the type of work he could perform, while there was also evidence that the claimant had voluntarily limited his income. As was held to be appropriate in the Publix case, the DC awarded benefits only for that portion of wage loss attributable to claimant’s medical restriction. The Quetglas case is distinguishable in that the wage loss there was attributable solely to the claimant’s con-cededly inadequate job search.

Accordingly, the deputy’s award of wage loss and calculation of deemed earnings is AFFIRMED.

L. SMITH and BARFIELD, JJ., concur.


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Citator

Cited By

  • Edwards v. Caulfield, 560 So. 2d 364 (Fla. 1st DCA 1990)
    …ntarily limits his income, temporary partial disability benefits shall be based upon “the amount which would have been earned if the employee did not limit his income or accepted appropriate employment.” See Sigma Con Commercial Division v. Calhoun, 475 So. 2d 733 (Fla. 1st DCA 1985) (where medical evidence indicated that claimant was restricted as to type of work he could perform, deputy properly applied deemed earnings provision and awarded wage-loss benefits even though deputy found that claimant had not p…
  • The Prof'ls & INA/AETNA v. Spicer, 505 So. 2d 651 (Fla. 1st DCA 1987)
    …PER CURIAM. AFFIRMED. Sigma Con Commercial Division v. Calhoun, 475 So. 2d 733 (Fla. 1st DCA 1985). BOOTH, C.J., and JOANOS and NIMMONS, JJ., concur.…

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