CUSTOM PAINTS AND CIGNA INSURANCE COMPANY, APPELLANTS,
v.
MAURICE PHILBRICK, APPELLEE
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.
In this workers' compensation appeal, the court reversed the deputy commissioner's award of temporary disability and wage loss benefits to an injured painter, holding that the claimant's attempt to start a lunch wagon business did not satisfy the requirement for an adequate job search and constituted a voluntary limitation of income.
The court held that the claimant was entitled to temporary total disability benefits for the two-week period in August 1985 when he suffered an exacerbation supported by medical testimony, and wage loss benefits based on an adequate job search for the remainder of August. However, the court held that attempting to establish a lunch wagon business from May through July 1985 was not a substitute for an adequate job search and constituted a voluntary limitation of income, requiring remand for reconsideration of whether the lunch wagon work established the extent of the claimant's employability.
[1] An order awarding disability benefits must specify the benefits awarded and the dates covered by each award.
[2] An adequate job search is required to establish entitlement to temporary partial disability or wage loss benefits, even in the absence of medical evidence of inability to…
Previewing 2 of 6 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“We hold that the attempt to establish a new business, under the circumstances presented here, was not a substitute for the requirement of an adequate job search.”
Establishes that a business venture cannot satisfy the statutory requirement for an adequate job search in workers' compensation cases.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceClaimant, a painter, suffered a compensable back injury on March 15, 1984, while carrying heavy paint cans up a stepladder. He received a 5% disabilit…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Job Search Adequacy cases and more on FLexlaw
SMITH, Judge.
The employer/carrier appeal an order of the deputy commissioner awarding temporary total disability (TTD) benefits or temporary partial disability (TPD) benefits or wage loss benefits. We note at the outset that the deputy’s’ order is deficient in that it fails to set forth both the specific benefits awarded and the dates covered by each award. Sambo’s Restaurant v. Horn, 381 So. 2d 330 (Fla. 1st DCA 1980). Claimant, a painter, suffered a compensable back injury on March 15, 1984, as the result of carrying heavy cans of paint up a stepladder. He was treated by several physicians, one of whom gave claimant a 5% disability rating under the AMA Guidelines as of April 25, 1985. Despite conflicting evidence, we accept the deputy’s finding that claimant is no longer able to paint.
Claimant sought TTD or TPD benefits from November 7, 1984, to February 28, 1985. The deputy found that, although there was no medical evidence of claimant’s inability to work during this period, claimant was still entitled to benefits, since he had conducted an adequate job search. The record does not support the deputy’s latter finding in light of claimant’s testimony that he was mostly resting during this period, even though his doctor had told him to return to full-time work.
The next period for which claimant sought disability or wage loss benefits was from May 1,1985, to August 31,1985. The deputy again found the absence of medical evidence of claimant’s inability to work, except for a two-week period in August during which time claimant suffered a temporary exacerbation of his back injury resulting in TTD. This finding is supported by the record, as well as the deputy’s finding of an adequate job search for the remainder of the month of August. We agree with the deputy’s ruling that claimant was totally disabled for two weeks during August 1985, based on medical testimony, and that he was entitled to wage loss based on an adequate job search during the remainder of that month.
However, the deputy also found that claimant’s attempt to establish a lunch wagon business, from May through July 1985, was bona fide and not an effort to voluntarily limit his income. We find this was error. Claimant testified to the absence of a job search during this period. We hold that the attempt to establish a new business, under the circumstances presented here, was not a substitute for the requirement of an adequate job search. Thus, we agree with the employer/carrier that claimant, on the record before us, must be found to have voluntarily limited his income by operating the lunch wagon in lieu of seeking employment or rehabilitation.
The deputy has not found, nor does the evidence establish, that claimant was unable to do any type of work for which he could expect remuneration in the market place for the period from May 1, 1985, through July 31, 1985. Claimant may be compensated for wage loss for this period, if at all, based only on a finding that the lunch wagon work established the extent of his employability, in which event it would also be necessary for the claimant to establish the reasonable value of such work in order to receive any proven wage loss over and above his “deemed earnings.”1 Anderson v. S & S Diversified, Inc., 477 So. 2d 591 (Fla. 1st DCA 1985). We remand to the deputy commissioner for the purpose of reconsideration of the claim for this period, including the receipt of further evidence at his discretion.
REVERSED and REMANDED with directions.
JOANOS and WIGGINTON, JJ., concur. . In Millo Trash Service Co. v. Millo, 473 So. 2d 839 (Fla. 1st DCA 1985), citing H.G. Boddiford Painting Cons. v. Boddiford, 426 So. 2d 1243 (Fla. 1st DCA 1983), we held that business profits are not earnings for the purpose of determining wage loss. Conversely, it follows that neither can business losses be a justification for nonpayment of wages to an owner-employee. If a business venture, like the one herein, proves unsuccessful, the owner-employee will be deemed to have earned the same amount which he could have earned on the open job market.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Edwards v. Caulfield, 560 So. 2d 364 (Fla. 1st DCA 1990)…ication in all cases. Rather, whether a claimant’s effort to establish his own business is bona fide and sufficient to substitute for an adequate job search is a question which is dependent on the circumstances. See e.g., Custom Paints v. Philbrick, 490 So. 2d 1352 (Fla. 1st DCA 1986). * ⅜ * * * * Although the deputy recommenced wage loss benefits ... when the character of claimant’s efforts was shown by a real estate closing which produced a subse [*376] quent commission ... the deputy could nevertheless fi…
-
The OLD Cove Condo & W. Am. Ins. Co. v. Curry, 511 So. 2d 666 (Fla. 1st DCA 1987)…alliative care only. The E/C also challenge the award of wage loss after 12 August 1986, contending that Curry voluntarily limited his income by stopping his work search and opening and operating his own business, citing Custom Paints v. Philbrick, 490 So. 2d 1352 (Fla. 1st DCA 1986). In that case, the deputy awarded wage loss benefits for a period in which the claimant worked at establishing a lunch stand business. This court reversed, stating that the evidence did not show nor had the deputy found that clai…
-
The W. Union Tel. Co. v. Perri, 508 So. 2d 765 (Fla. 1st DCA 1987)…ation in all cases. Rather, whether a claimant’s effort to establish his own business is bona fide and sufficient to substitute for an adequate job search is a question which is dependent upon the circumstances. See e.g., Custom Paints v. Philbrick, 490 So. 2d 1352 (Fla. 1st DCA 1986). And the causative effect of discharge from other successful post-injury employment is likewise dependent upon the facts in context. See Johnston. In the present case the deputy concluded that the circumstances establish a volunt…
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
- Anderson v. S & S Diversified, Inc., 477 So. 2d 591 (Fla. 1st DCA 1985)
- H.G. Boddiford Painting Contractors, Inc. v. Boddiford, 426 So. 2d 1243 (Fla. 1st DCA 1983)
- Sambo's Rest. & Gen. Adjustment Bureau v. Horn, 381 So. 2d 330 (Fla. 1st DCA 1980)
- Millo Trash Serv. Co. & Fireman's Fund Am. Ins. Co. v. Millo, 473 So. 2d 839 (Fla. 1st DCA 1985)