T.G. LEE FOODS, INC. AND PROFESSIONAL ADMINISTRATORS, APPELLANTS,
v.
BENNY FARLEY, APPELLEE

Fla. 1st DCA | 1989-05-17
No. 88-1922
SMITH, C.J. and SHIVERS, J., concur.
544 So. 2d 265 Florida District Court of Appeal, First District (1989) Caution
Cited by 2 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

Farley's employer/carrier appealed a deputy commissioner's award of wage loss benefits to Farley, a workers' compensation claimant. The court affirmed the award of wage loss benefits but reversed and remanded regarding the calculation of such benefits after Farley's voluntary pursuit of self-employment and subsequent noncompensable accident.


Holding

The court held: (1) the deputy commissioner had jurisdiction to determine vesting in the profit-sharing plan to the extent it affected workers' compensation benefits; (2) wage loss benefits were properly awarded, but the calculation must account for Farley's voluntary limitation of income by pursuing self-employment, requiring remand; and (3) compensable benefits should continue during periods when noncompensable conditions temporarily prevented all work, as the compensable injury still limited earning capacity.


Headnotes

[1] A deputy commissioner has jurisdiction to determine the effect of a profit-sharing plan vesting on an employee's average weekly wage for workers' compensation purposes.

[2] An employee's pursuit of self-employment that results in a lower net income than available in suitable prior employment may constitute a voluntary limitation of income.

Previewing 2 of 5 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

Key Quotes

“To the extent that such a determination concerned workers' compensation benefits, the deputy commissioner did have jurisdiction.”

Establishes that the deputy commissioner had authority to address the profit-sharing vesting issue because it affected workers' compensation benefits.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Farley was injured in a compensable workers' compensation incident. In August 1986, Farley began self-employment and voluntarily limited his income by…

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.


Opinion of the Court
WIGGINTON, Judge.

WIGGINTON, Judge.

Appellants, employer/carrier, appeal the deputy commissioner’s order awarding wage loss benefits to appellee. We affirm in part, reverse in part and remand.

We reject employer/carrier’s position that the deputy commissioner had no authority to make a determination regarding appellee’s vesting in a profit-sharing plan. To the extent that such a determination concerned workers’ compensation benefits, the deputy commissioner did have jurisdiction. See Hyatt Hotel v. Peterson, 493 So. 2d 1063 (Fla. 1st DCA 1986); and Marion Correctional Institution v. Kriegel, 522 So. 2d 45 (Fla. 5th DCA 1988). In the instant case, the deputy commissioner limited his findings in regard to appellee’s vesting in the plan to its effect on appel-lee’s average weekly wage, which is clearly a workers’ compensation issue. Competent substantial evidence supports his findings on the matter. Compare Peterson. Consequently, employer/carrier has not shown error in this regard.

We affirm the deputy commissioner’s determination that appellee is entitled to wage loss benefits but reverse his finding that appellee did not voluntarily limit his income upon his pursuit of self-employment beginning in August 1986. We find that the record does not contain competent substantial evidence to support a determination, pursuant to section 440.15(3)(b)2, Florida Statutes, that appellee’s wage loss after that date was due significantly to his compensable injury and not to other factors. Instead, the evidence shows that appellee voluntarily limited his income by giving up suitable employment in order to start his own business, thereby netting a lower income than he was shown to be able to earn in the suitable employment. Remand for a determination of whether an award of wage loss based on “deemed earnings” under 440.15(3)(b)2 is unnecessary since, on page 6, paragraph (d), of his order, the deputy commissioner set forth the procedure to follow if “deemed earnings” should be found to apply.

Except for the first sentence therein, we approve the findings of paragraph (d). Competent substantial evidence supports the deputy commissioner’s determination of the correct “deemed earnings” figure. Upon remand, the deputy commissioner should allow employer/carrier to offset that amount, $282.29 per week, against wage loss benefits paid to appellee for the months following August 1986 for which such benefits have been claimed.

Employer/carrier contend that appellee is entitled to no wage loss benefits after a January 1987 noncompensable accident since that accident, and later unrelated hemorrhoid surgery, were factors rendering him totally unable to work for a period. Competent substantial evidence supports a determination that, although those noncompensable conditions may have left appellee temporarily unable to work at all, his compensable condition should still be factored in since, during those times, it also continuously affected his ability to earn more than $282.29 per week. See Anderson v. S & S Diversified, Inc., 477 So. 2d 591 (Fla. 1st DCA 1985) and Newhouse v. Volusia County School Board, 474 So. 2d 1222 (Fla. 1st DCA 1985).

Upon remand, the deputy commissioner may find it appropriate to revisit the award of attorney’s fees, depending upon the amount of benefits awarded.

Affirmed in part, reversed in part and remanded.

SMITH, C.J. and SHIVERS, J., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Tumelty v. Burnup & Sims, 589 So. 2d 454 (Fla. 1st DCA 1991)
    …PER CURIAM. AFFIRMED. T.G. Lee Foods, Inc. v. Farley, 544 So. 2d 265 (Fla. 1st DCA 1989). SHIVERS, ZEHMER and MINER, JJ., concur.…

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw