HELEN IVERSON, APPELLANT,
v.
HOLY CROSS HOSPITAL AND FRED S. JAMES & COMPANY OF FLORIDA, APPELLEES
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The deputy erred by imposing an inappropriate burden of proof on the claimant, and the claimant met her prima facie burden for wage loss benefits.
[1] A claimant seeking wage loss benefits must demonstrate a change in employment status due to the injury and an adequate, good-faith attempt to secure employment to establi…
[2] Once a claimant establishes a prima facie case for wage loss benefits, the burden shifts to the employer/carrier to prove a voluntary limitation of income or refusal of w…
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Join FLexlaw to unlock all legal intelligenceClaimant sustained an industrial injury, received treatment, and was released to work without restrictions. She was not rehired by her former employer…
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WENTWORTH, Judge.
Claimant seeks review of a workers’ compensation order in which a claim for wage loss benefits was denied. We find that the deputy erred by imposing an inappropriate burden of proof, and we therefore reverse the order appealed.
Claimant sustained an industrial injury when she slipped and fell, suffering a contusion to her tibia, while employed as a dietary aide in 1982. She was treated conservatively and returned to work but experienced persistent pain. After another incident when her knee “buckled,” claimant received further treatment and was given a knee brace. She was thereafter placed on “unable to work” status by her physician and physical therapy was provided. In March 1984 claimant was released to work without restriction, as having attained maximum medical improvement with a 2% permanent impairment rating.
Claimant testified that she reapplied for a position with her employer but was not re-hired. She conducted a work search and obtained part-time employment in a school lunchroom, in the course of which she experienced increased knee pain. Upon returning to her physician with “notable swelling,” claimant was advised to continue part-time employment while undergoing further tests. Acceptable results were obtained from these tests, and claimant was discharged from further care in March 1985, at which time she was released to return to work with “no restrictions or limitations related specifically to her occupation. ...”
A elaim was made for wage loss benefits for September through November 1985, and the validity of claimant's job search was not contested.1 The deputy denied the claim, finding that claimant’s “complaints ... about being unable to return to this kind of work and being unable to find employment is [sic], in my opinion, insufficient to override the medical evidence that the claimant can return to her regular form of work without restriction or limitation.” (e.s.) In reaching this conclusion the deputy referenced C & B Interiors v. Crispino, 446 So. 2d 242 (Fla. 1st DCA 1984), as “on all fours” with this case.
Crispino indicated that “bare complaints” of pain and inability to work did not satisfy the claimant’s evidentiary burden. But the opinion does not suggest that the claimant there undertook any job search or attempted to return to work with the former employer. In the present case the parties stipulated as to the adequacy of claimant’s job search, and she was declined reemployment by her former employer after being displaced from her job. City of Clermont v. Rumph, 450 So. 2d 573 (Fla. 1st DCA 1984), establishes that these are significant factors to be considered in assessing whether a claimant has met the burden of proof imposed by section 440.-15(3)(b)(2), Florida Statutes.
Rumph expressly adheres to the position adopted in Regency Inn v. Johnson, 422 So. 2d 870 (Fla. 1st DCA 1982), on reh. en banc, to the effect that a claimant’s burden is satisfied by “showing a change in employment status due to the injury, and an adequate and good faith attempt to secure employment ... so as to establish, prima facie, an economic loss....” Regency Inn further indicates that once a claimant shows such loss the burden is then upon the employer/carrier to demonstrate a voluntary limitation of income or refusal of work.
The circumstances of the present case satisfy claimant’s initial burden of proof in accordance with section 440.15(3)(b)(2), as delineated in Rumph and Regency Inn. As in Rumph, claimant’s industrial injury and resulting condition were shown to be a causal element in the wage loss claimed.2 The deputy thus should have considered all relevant evidence before him and found that claimant met the initial burden of a prima facie showing that the wage loss claimed was the result of the compensable injury, and voluntary limitation of income was not shown.
The order appealed is reversed and the cause remanded with directions that the claim be granted.
BOOTH, C.J., and MILLS, J., concur. . The record statements were:
MR. BEISLER: I’m not contesting the job search and the forms. I mean, she has submitted job search—
THE DEPUTY: Well, you’re asking me to determine whether or not it’s reasonable—
MR. MORCROFT: Not the validity of the job search. Their position really is a legal one Judge.- They are saying that when the claimant has minimal impairment and no restrictions, that that doesn’t qualify for wage loss, is that right?
MR. BEISLER: Right.
MR. MORCROFT: It’s a legal question and not a factual one.
. Rumph expressly notes that the facts there presented did not involve an accident-related economic dislocation entirely unaffected by any residual condition or impairment. Neither does the present case involve this circumstance. That conclusion, however, does require consideration of the probative effect of the work search evidence which was conceded to be adequate by appellees here and before the deputy. Claimant also testified that she was expressly rejected for employment by one potential employer because of her injury, explaining that she was told:
... if I didn’t have the injury already to my leg, they could give me something to do, but since I have the injury, that I couldn’t get the job.... He said that the job consisted of a lot of standing and a lot of walking.
But the probative effect of job search evidence does not depend solely on such direct attribution of causal relation, and we note that claimant advised this potential employer that she was released to work without restrictions. The order does not reject such evidence on grounds of weight or credibility but simply concludes by misapplication of Crispino that it is per se insufficient to override the fact of medical release without restriction.
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Trujillo v. S. Wine & Spirits, 525 So. 2d 481 (Fla. 1st DCA 1988)…ions, temporary wage loss benefits must be denied. (Emphasis supplied). This is an incorrect statement of the law. The absence of “physician-imposed” restrictions does not preclude recovery of wage loss benefits. See Iverson v. Holy Cross Hospital, 498 So. 2d 620 (Fla. 1st DCA 1986), in which we held that the fact that the claimant had a medical release to return to work with no restrictions or limitations specifically related to her occupation did not preclude her recovery for wage loss benefits. Similarly…
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Rosalina Bado v. Canteen Corp. & CNA Ins. Cos., 513 So. 2d 1364 (Fla. 1st DCA 1987)…ompensable injury. She points out that the employer/carrier did not challenge the sufficiency of her work search, and asserts that this search satisfied her initial burden of proof under section 440.15(3)(b)2, citing Iverson v. Holy Cross Hospital, 498 So. 2d 620 (Fla. 1st DCA 1986). She argues that the order improperly places a permanent penalty on her, regardless of her later good faith efforts to obtain employment. We agree. The deputy commissioner may apply the “deemed earnings” provision to allow the e…
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Stewart v. Resort Inns OF Am. & Cincinnati Ins. Co., 513 So. 2d 1334 (Fla. 1st DCA 1987)…ctions — a situation which did not occur in the case at bar — the claimant may nonetheless be entitled to compensation benefits if he undertook a job search or attempted to return to work with the former employer. See Iverson v. Holy Cross Hospital, 498 So. 2d 620 (Fla. 1st DCA 1986). There was evidence before the dc from which he could have concluded that claimant attempted to return to work, but was unable to perform his labors adequately due to the effects of the industrial injury- On remand the dc is dir…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Regency INN v. Johnson, 422 So. 2d 870 (Fla. 1st DCA 1982)
- City OF Clermont & Aetna Ins. Co. v. Rumph, 450 So. 2d 573 (Fla. 1st DCA 1984)
- Spicer v. State, 446 So. 2d 242 (Fla. 1st DCA 1984)