THE OLD COVE CONDO AND WEST AMERICAN INSURANCE COMPANY, APPELLANTS,
v.
ROBERT HUGH CURRY, APPELLEE

Fla. 1st DCA | 1987-08-05
No. BQ-57
SMITH, C.J., and ERVIN, J., concur.
511 So. 2d 666 Florida District Court of Appeal, First District (1987) Negative Treatment
Cited by 30 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

In this workers' compensation appeal, the court affirmed the deputy commissioner's award of wage loss benefits and future medical care to an injured worker, but reversed the award for September 1986 due to lack of proper documentation. The case addresses when a claimant's transition to self-employment constitutes a bona fide business effort versus voluntary income limitation.


Holding

The court affirmed the findings of permanent impairment and the award of future medical care (interpreted as palliative care only). It affirmed the wage loss award for August 1986 during Curry's business establishment phase, finding the deputy did not abuse discretion in determining the efforts were bona fide and sufficient. However, it reversed the September 1986 wage loss award for lack of required benefit forms and remanded for proper documentation.


Headnotes

[1] A permanent impairment rating is supported by competent evidence when the treating physician testifies that the impairment is related within reasonable medical probabilit…

[2] Palliative medical treatment for the relief of pain is awardable after a claimant has attained maximum medical improvement.

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Key Quotes

“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.”

Establishes the standard for evaluating when self-employment efforts constitute legitimate wage loss claims versus voluntary income limitation

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Facts & Procedural History

Curry suffered a compensable back injury in April 1985 and reached maximum medical improvement on March 4, 1986 with 3% permanent impairment. After be…

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Opinion of the Court
MILLS, Judge.

MILLS, Judge.

The Old Cove Condo and West American Insurance Co. (E/C) appeal an order of the deputy commissioner awarding wage loss benefits and future medical care. We affirm in part and reverse in part.

Curry injured his back in a compensable accident in April 1985, reaching maximum medical improvement on 4 March 1986 with a 3% permanent impairment. He continued to work for the E/C until May 1986 when he was fired based on a lack of work which he could perform. He immediately began a job search, which continued through May and June 1986. However, Curry ceased his work search after 8 July to begin planning his own lawn maintenance business, which commenced operation on 13 August 1986. Curry earned $817.00 from the business in August, working approximately 30 hours per week. No work search was performed after 8 July 1986.

Although Curry initially claimed wage loss benefits commencing in May 1985, only wage loss from 1 May 1986 “to the present and continuing” was at issue; the record reflects written requests for wage loss through 31 August 1986 only. The E/C did not dispute the adequacy of Curry’s job search through 8 July 1986, but contended that he thereafter voluntarily limited his income by starting his own business and failing to continue his work search. Also at issue was Curry’s entitlement to medical care and physical therapy, both of which the E/C had deauthorized on 25 April 1986.

The D/C awarded wage loss benefits from 2 May 1986 to the date of the hearing, 18 September 1986, less the period during which Curry was setting up the lawn maintenance business, 9 July through 12 August 1986. The order also authorized “future medical care as required.” The E/C filed a motion for rehearing, alleging that it was error to award wage loss benefits for the 18-day period in September 1986, in that written requests therefor were only filed through 31 August. Curry filed a response acquiescing in the correction of the order to this effect, but the motion was never acted upon by the deputy.

The E/C argue first that the deputy erred in finding permanent impairment, in that the limitation of motion on which it was based was not the result of the industrial accident. However, Curry’s treating physician testified that the permanent impairment rating was related within reason able medical probability to the industrial injury; any ambiguity in the doctor’s testimony on this point was for the deputy to resolve. The finding of permanent impairment is therefore supported by competent evidence and is affirmed.

The E/C next allege error in the award of future medical care, given that the evidence showed that Curry had reached maximum medical improvement. While all of the medical testimony presented below clearly obviates the need for any remedial treatment, the testimony of the treating physician establishes the need for palliative treatment for the relief of pain, which treatment is awardable after a claimant has attained MMI. Baron Transport v. Riley, 491 So. 2d 1220 (Fla. 1st DCA 1986). We therefore affirm the award of medical care, but interpret it as an award of palliative 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 claimant was unable to do any type of work for which he could expect remuneration in the market place for the period he ran the lunch stand.

In Western Union Telegraph Co. v. Perri, 508 So. 2d 765 (Fla. 1st DCA 1987), the claimant sought wage loss benefits for three months during which he had pursued his own real estate business. The claimant had earned no money during the first two months; no money was earned in the third month either, but during that month claimant did work which resulted in the later receipt of a commission. The deputy denied wage loss benefits for the first two months finding that Perri had voluntarily limited his income. However, wage loss was awarded for the third month.

The claimant appealed the finding of voluntary limitation and this court affirmed, holding that “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.” Western Union at 767 citing Custom Paints. The court went on to say that “[although the deputy recommenced wage loss benefits ... when the character of claimant’s efforts was shown by a real estate closing which produced a subsequent commission, ... the deputy could nevertheless find that prior to [that time] claimant’s efforts were not shown to be bona fide or reasonable, and thus constituted a voluntary limitation of income.” Western Union at 767 (emphasis supplied).

As we read Western Union, whether a claimant’s effort to establish his own business is bona fide and sufficient to substitute for a work search is a factual determination. Therefore, our only inquiry in the instant case is whether there is competent substantial evidence to support the deputy’s determination that Curry’s efforts were bona fide and sufficient. The evidence shows that, in establishing his lawn maintenance business, Curry acquired the necessary equipment and actively sought lawn maintenance work. The “character of his efforts” was further shown by the fact that, during the two weeks in August in which he operated the business, he earned $817.00. Under these facts, we do not find that the deputy abused his discretion in awarding wage loss benefits for the August 1986 period during which Curry was actively and productively self-employed.

Finally, the E/C reiterate the point pressed before the deputy in a motion for rehearing, namely, that it was improper to award wage loss benefits for a period for which no request form was filed, namely, 1-18 September 1986. Curry conceded the point in his response to the motion below, and basically concedes it on appeal, but argues that, because the basis for the September award was the same as for August 1986, namely his lawn maintenance work, any error is harmless. We disagree. Without the form for September indicating the amount of wages, if any, actually earned by Curry, and any other benefits that may have been received by him, it is impossible to determine accurately the amount of wage loss benefits due. See Bay Steel Erections v. Chung, 458 So. 2d 31 (Fla. 1st DCA 1984). Therefore, the wage loss award for the period 1-18 September 1986 is reversed and the case remanded with directions that Curry be required to complete and file a benefit form for that period.

SMITH, C.J., and ERVIN, J., concur.


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Citator

Cited By (14 total)

  • Edwards v. Caulfield, 560 So. 2d 364 (Fla. 1st DCA 1990)
    …own business is bona fide and sufficient to substitute for a work search is a factual determination, and therefore our inquiry is limited to whether there is competent substantial evidence to support the judge’s finding. See Old Cove Condo v. Curry, 511 So. 2d 666 (Fla. 1st DCA 1987). In the present case there is no evidence which establishes that claimant’s efforts to establish her real estate business were bona fide and therefore sufficient to substitute for an adequate work search. Claimant’s testimony rev…
    1 / 2
  • Rosalina Bado v. Canteen Corp. & CNA Ins. Cos., 513 So. 2d 1364 (Fla. 1st DCA 1987)
    …ion, claimant can no longer be considered as refusing suitable employment which has been offered to her. It is fundamental that entitlement to wage loss benefits must be determined on a month-to-month basis.” Id. at 664. In Old Cove Condo v. Curry, 511 So. 2d 666 (Fla. 1st DCA 1987), the court cited Western Union for the proposition that whether a claimant’s effort to establish his own business is bona fide and sufficient to substitute for a work search is a factual determination, and found that the deputy c…
  • Keller Kitchen Cabinets & Alexis, Inc. v. Holder, 586 So. 2d 1132 (Fla. 1st DCA 1991)
    …effects of the injuries. E.g. Pan American World Airways, Inc. v. Weaver, 226 So. 2d 801 (Fla.1969); Mobley v. Jack & Son Plumbing, 170 So. 2d 41 (Fla.1964); City of Orlando v. Blackburn, 519 So. 2d 1017 (Fla. 1st DCA 1987); Old Cove Condo v. Curry, 511 So. 2d 666 (Fla. 1st DCA 1987); Baron Transport v. Riley, 491 So. 2d 1220 (Fla. 1st DCA 1986); Professional Administrators v. Macias, 448 So. 2d 1159 (Fla. 1st DCA 1984); Khawam v. Collision Clinics International, Inc., 413 So. 827 (Fla. 1st DCA), rev. denied,…
    1 / 2

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