MARIE MACKIN, APPELLANT,
v.
OLDE WORLD CHEESE SHOP, TRAVELERS INSURANCE CO., APPELLEES
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A workers' compensation claimant appealed an order awarding temporary wage-loss benefits based on deemed earnings rather than actual lost wages. The First District Court of Appeal reversed, finding the claimant did not voluntarily limit her income because she quit physically demanding work due to her compensable injury and was misled by the carrier about her benefit eligibility.
The court reversed the award of benefits based on deemed earnings. The claimant did not voluntarily limit her income because her reasons for leaving the Essex Pub were related to physical difficulties from her industrial accident, and she was excused from conducting a documented job search because the carrier incorrectly informed her she was ineligible for benefits.
[1] A claimant's voluntary termination of employment is justified, and does not constitute a voluntary limitation of income, when the termination is due to physical difficult…
[2] An employee is excused from performing a job search for wage-loss benefits when the employer/carrier fails to inform the employee of their rights and responsibilities und…
Previewing 2 of 3 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“Claimant was therefore justified in leaving her job at the Essex Pub and seeking some type of less strenuous employment.”
Establishes that voluntary departure from employment may be justified when motivated by injury-related physical limitations
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Join FLexlaw to unlock all legal intelligenceMackin sustained a compensable back injury while working as a part-time waitress. After returning to work and being terminated in April 1986, she obta…
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SHIVERS, Judge.
The claimant in this workers’ compensation case appeals an order awarding temporary wage-loss benefits based on the “deemed earnings” provision of section 440.15(4)(b), Florida Statutes, rather than on actual lost wages. Finding no basis for use of the deemed earnings provision, we reverse and remand for recalculation of claimant’s wage loss.
According to the record, the claimant sustained a compensable back injury while working as a part-time waitress for appel-lee, Olde World Cheese Shop, after which the employer/carrier (E/C) paid temporary total disability benefits until claimant was able to return to her job. Claimant worked for approximately one year after returning, but eventually became unable to work quickly enough to handle the fast-paced business lunch crowd, and was terminated from her employment on April 9, 1986. After her termination, claimant sought part-time work, submitted job search forms, and received wage-loss benefits from the E/C.
In May of 1986 she obtained work as a part-time waitress at the Essex Pub, earning approximately $60 per week. In mid-August 1986, however, she quit her job at the Essex Pub, having found herself unable to withstand the job’s physical requirements.1
Approximately one week after leaving the Essex Pub, claimant had a telephone conversation with the carrier’s claims adjuster, during which she was told that she would not be entitled to further wage-loss benefits because she had voluntarily quit her job. Thereafter, claimant received no wage-loss or job search forms from the carrier and, although she did continue to search for part-time work, did not keep any records due to her belief that she was ineligible for benefits.
Claimant contends on appeal that the deputy commissioner (DC) erred in finding that she voluntarily limited her income and, therefore, in awarding wage-loss benefits for the period between August 15,1986 and July 16, 1987, based on deemed earnings of $64.18 per week.
We agree with claimant on two bases.
First, although the claimant admittedly left her job at the Essex Pub voluntarily, she clearly testified at the hearing (and no evidence to the contrary was presented) that her reasons for doing so were related to physical difficulties stemming from her industrial accident. Claimant was therefore justified in leaving her job at the Essex Pub and seeking some type of less strenuous employment. See Terhune v. North Brothers Company, 504 So. 2d 499 (Fla. 1st DCA 1987). As in Terhune, we find that this case differs from those in which the claimant refuses work solely because he or she desires different employment. Cf.
E. B. Malone Corporation v. Johnson, 425 So. 2d 622 (Fla. 1st DCA 1983).
Second, it cannot be said that the claimant voluntarily limited her income by failing to document her search for work after leaving the Essex Pub, since it is clear that her actions were based on the carrier’s statement that the claimant was no longer eligible for wage-loss benefits. This court has held on many occasions that an employee is excused from performing a job search where the E/C fails to inform him of his rights and responsibilities under the Workers’ Compensation Act. Rios v. Fred Teitelbaum Construction, 522 So. 2d 1015 (Fla. 1st DCA 1988); Lopez v. Nabisco Brands, Inc., 516 So. 2d 993 (Fla. 1st DCA 1987); Coq v. Fuchs Baking Company, 507 So. 2d 138 (Fla. 1st DCA 1987); Morris v. Metal Industries, 491 So. 2d 312 (Fla. 1st DCA 1986); DeFrees v. Colt and Dumont/Hit Sales, 483 So. 2d 848 (Fla. 1st DCA 1986).
It would be inequitable to find that claimant had voluntarily limited her income because she failed to conduct a job search or to keep adequate records of the job search, where the claimant had been told by the E/C that she was not entitled to further benefits.
Accordingly, the deputy’s award of wage-loss based on deemed earnings of $64.18 per week from August 15, 1986 through July 16, 1987 is hereby reversed, and the matter remanded for recalculation of benefits based on claimant’s actual wage-loss during that period.
REVERSED and REMANDED.
BOOTH and THOMPSON, JJ., concur. . When asked at the hearing why she quit her job at the Essex Pub, claimant testified: "I couldn’t take the racing around back and forth on my legs and carrying food because it was too strenuous on my back and it would bother my back quite a bit.”
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Nickolls v. Univ. OF Fla. & Div. of Risk Mgmt., 606 So. 2d 410 (Fla. 1st DCA 1992)…a. 1st DCA 1991); Scott v. Container Corp. of Am., 559 So. 2d 399 (Fla. 1st DCA 1990); Parker v. Eaton Corp., 554 So. 2d 644 (Fla. 1st DCA 1989); Coleman v. Champion Int'l, Inc., 552 So. 2d 1196 (Fla. 1st DCA 1989); Mackin v. Olde World Cheese Shop, 536 So. 2d 301 (Fla. 1st DCA 1988); Rios v. Fred Teitelbaum Constr., 522 So. 2d 1015 (Fla. 1st DCA 1988); Coq v. Fuchs Baking Co., 507 So. 2d 138 (Fla. 1st DCA 1987); Morris v. Metal Indus., 491 So. 2d 312 (Fla. 1st DCA 1986); DeFrees v. Colt & DuMont/Hit Sales, 4…1 / 2
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Baggett v. Mulberry Constr. Co. & Adjustco, 549 So. 2d 1386 (Fla. 1st DCA 1989)…work search is excused where the employer/carrier fail to advise the claimant of his rights and responsibilities under the Workers’ Compensation Act. Ninia v. Southwest Bottlers, 547 So. 2d 966 (Fla. 1st DCA 1989); Mackin v. Olde World Cheese Shop, 536 So. 2d 301, 303 (Fla. 1st DCA 1988); Griffith v. McDonalds, 526 So. 2d 1032, 1033 (Fla. 1st DCA 1988); Rios v. Fred Teitelbaum Construction, 522 So. 2d 1015, 1017 (Fla. 1st DCA 1988); Lopez v. Nabisco Brands, Inc., 516 So. 2d 993 (Fla. 1st DCA 1987); Coq v. Fu…
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City OF Miami v. Jacoby, 599 So. 2d 171 (Fla. 1st DCA 1992)…id benefits in full for the period of time during which he or she was not on notice of the obligation to return to work or otherwise given the opportunity to test his or her capacity to work in the labor market. In Mackin v. Olde World Cheese Shop, 536 So. 2d 301 (Pla. 1st DCA1988), this court held that if an employer/carrier does not notify the claimant of the work search obligation, the claimant is entitled to full compensation benefits, and the deemed earnings offset is inapplicable. Our deci-sional law a…1 / 2
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
- Lucien COQ v. Fuchs Baking Co. & GAB Bus. Servs., 507 So. 2d 138 (Fla. 1st DCA 1987)
- Morris v. Metal Indus., 491 So. 2d 312 (Fla. 1st DCA 1986)
- DeFREES v. Colt & Dumont/HIT Sales & Hartford Ins. Co., 483 So. 2d 848 (Fla. 1st DCA 1986)
- Rios v. Fred Teitelbaum Constr. & U.S. Fid. & Guar. Co., 522 So. 2d 1015 (Fla. 1st DCA 1988)
- E.B. Malone Corp. & Liberty Mut. Ins. Co. v. Lemuel Blaine Johnson, 425 So. 2d 622 (Fla. 1st DCA 1983)
- Lopez v. Nabisco Brands, Inc., 516 So. 2d 993 (Fla. 1st DCA 1987)
- Terhune v. N. Bros. Co. & Underwriters Adjusting Co., 504 So. 2d 499 (Fla. 1st DCA 1987)