EDDIE BROOKINGS, APPELLANT,
v.
HUNZINGER CONSTRUCTION AND AETNA LIFE AND CASUALTY, APPELLEES

Fla. 1st DCA | 1987-06-02
No. BM-374
BOOTH, C.J., and JOANOS and NIMMONS, JJ., concur.
512 So. 2d 952 Florida District Court of Appeal, First District (1987) Positive Treatment
Cited by 12 cases

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Synopsis

Eddie Brookings appealed a workers' compensation order reducing his wage-loss benefits under the "deemed earnings" provision of Florida law. The court reversed, finding the deputy commissioner lacked jurisdiction to reduce benefits for months when benefits had been stipulated as paid and the claimant's job search had not been challenged.


Holding

The court held it was error to reduce wage-loss benefits under the deemed earnings provision for June through October 1985 because: (1) the deputy failed to specifically find that the claimant voluntarily limited income or failed to accept commensurate employment, (2) there was evidence of adequate job search during those months, and (3) the deputy lacked jurisdiction to modify benefits for months that were stipulated as paid and uncontroverted with unchallenged work search efforts.


Headnotes

[1] A reduction in wage-loss benefits under the "deemed earnings" provision requires a finding that the employee voluntarily limited income or failed to accept employment com…

[2] A good-faith job search can preclude the application of the "deemed earnings" provision to reduce wage-loss benefits.

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Key Quotes

“In applying the deemed earnings provision of the Workers' Compensation Act, the deputy is required to find that the employee "voluntarily limits his or her income, or fails to accept employment commensurate with his or her abilities."”

Establishes the statutory requirement for applying the deemed earnings reduction

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Facts & Procedural History

Brookings received wage-loss benefits from June through November 1985 and sought additional benefits for earlier periods and for July-September 1985 w…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This cause is before us on appeal from a workers’ compensation order in which wage-loss benefits were reduced pursuant to the “deemed earnings” provision of Section 440.15(3)(b)2, Florida Statutes. Appellant asserts error in the deputy commissioner’s application of the deemed earnings provision for months during which appellant conducted a good-faith job search. We agree.

The employer/servicing agent paid wage-loss benefits from June 1, 1985 through November 30,1985. Claimant filed a claim for additional wage-loss or temporary total disability benefits for the period of October 16, 1984 through May 31, 1985, up to the period when wage-loss benefits were paid. Appellant also sought additional wage-loss benefits from July 1,1985 through September 30,1985, during which period wage-loss benefits were paid at a lower rate. The employer/servicing agent filed a notice to controvert, defending on the grounds that claimant failed to' conduct a good-faith job search and had voluntarily limited his income. The employee/servicing agent defended the underpayment of wage-loss benefits on the basis that a credit had properly been taken for overpayment of temporary total disability benefits in 1984.

At the hearing, the employer/servicing agent asserted that the concept of deemed earnings be applied to reduce the amount of wage-loss benefits. The deputy awarded claimant wage-loss benefits from October 16, 1984 through October 31, 1985. The deputy awarded an amount less than claimant had been receiving, based on his finding of deemed earnings and the application of that statutory provision.

In applying the deemed earnings provision of the Workers’ Compensation Act, the deputy is required to find that the employee “voluntarily limits his or her income, or fails to accept employment commensurate with his or her abilities.” In the case sub judice, the deputy did not specifically find that claimant voluntarily limited his income by failing to conduct a good-faith job search or failing to accept employment commensurate with his abilities.

Moreover, there is proof of claimant conducting a job search for the months of June, 1985 through October, 1985. Claimant testified to conducting a job search during those periods, and the record contains completed job search forms for those months. Also, the employer/servicing agent paid wage-loss benefits for the months of June through October, 1985, and never specifically challenged the sufficiency of claimant’s work search for those months. In reducing the amount of wage-loss benefits for the entire period of October, 1984 through October, 1985, the deputy stated that claimant conducted an adequate job search during some periods but had no legal excuse for not conducting a job search prior to October, 1985. The deputy did not rule on whether the job search conducted by claimant prior to October of 1985 was inadequate.

Accordingly, it was error for the deputy to reduce wage-loss benefits on the basis of the deemed earnings provision of the Workers’ Compensation Act for the months of June through October ofr 1985.

Under other circumstances it may be appropriate to remand for proper determination of this issue; however, we agree with appellant that the deputy had no jurisdiction to rule on the amount of wage-loss benefits paid for the months of June through October of 1985, because the parties stipulated that benefits had been paid for each of those months, the amount was uncontroverted, and claimant’s work search was not challenged at the hearing. See United Telephone Company of Florida v. Wooten, 468 So. 2d 1056 (Fla. 1st DCA 1985).

Accordingly, we reverse the deputy’s order as to the reduction in wage-loss benefits for the months of June, 1985 through October, 1985.

REVERSED.

BOOTH, C.J., and JOANOS and NIMMONS, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Bright v. City OF Tampa & Poe Risk Mgmt. Servs., Inc., 546 So. 2d 1122 (Fla. 1st DCA 1989)
    …v. Morris, 418 So. 2d 1274, 1275 (Fla. 1st DCA 1982). Absent a voluntary limitation of income or an inadequate job search during the time period in question, application of the “deemed earnings” provision is improper. Brookings v. Hunzinger Constr., 512 So. 2d 952, 953 (Fla. 1st DCA 1987). Full-time employment is evidence of a good faith job search.4 After voluntarily limiting his income in July, the claimant worked full-time for the state in August and September 1987. After the September termination, he imm…
  • Cooper's Inc. & the Hartford v. Taylor, 556 So. 2d 491 (Fla. 1st DCA 1990)
    …emed earnings under section 440.-15(3)(b)2. Absent a voluntary limitation of income or an inadequate job search during [*493] the time period in question, application of the deemed earnings provision is improper. Brookings v. Hunzinger Construction, 512 So. 2d 952 (Fla. 1st DCA 1987). See also McNeil v. Progressive Driver Services, 513 So. 2d 195 (Fla. 1st DCA 1987) (deemed earnings provision does not apply where a claimant sustains a second injury shortly after returning to work at a new job as the second in…
  • Walker v. Heavy Mach. Tool & Transporters Inc., 576 So. 2d 1363 (Fla. 1st DCA 1991)
    …l be presumed, absent contrary substantial evidence, that the sum the employee was able to earn during the period he voluntarily limited his income is the amount that he otherwise would have earned. According to Brookings v. Hunzinger Construction, 512 So. 2d 952 (Fla. 1st DCA 1987), in order to apply the deemed earnings provision, the J.C.C. is required to find that the employee voluntarily limited his income or failed to accept employment commensurate with his abilities. However, in the subject order, ther…

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