GCC BEVERAGES AND LIBERTY MUTUAL INSURANCE COMPANY, APPELLANTS,
v.
JOHN F. SIMMONS AND DANIA F. CARILLO, DIRECTOR, STATE OF FLORIDA, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIV. OF WORKERS' COMPENSATION, APPELLEES
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An employer and insurance carrier appealed a workers' compensation order awarding wage loss benefits to an injured claimant. The court affirmed, holding that the adequacy of a work search is a fact-specific inquiry dependent on the totality of circumstances rather than a mechanical numerical threshold, and that the claimant met his burden despite varying monthly job contact numbers.
The court affirmed the award of wage loss benefits, holding that the claimant met his burden of proving a causal connection between the industrial injury and wage loss. The adequacy of a work search is determined by the totality of circumstances, including quality and context of job contacts, not by an absolute numerical threshold.
[1] The totality of circumstances, including the quality and context as well as the number of job contacts, determines the adequacy of a work search for wage loss benefits.
[2] A claimant's work search efforts are sufficient to meet the statutory burden for wage loss benefits when the evidence, viewed as a whole, supports the finding.
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“the evidence as a whole is sufficient to meet the burden imposed by section 440.-15(3)(b)2, Florida Statutes (1987), as delineated in City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), pet. for rev. denied 458 So.2d 271 (Fla.1984), for wage loss benefits”
Establishes that the claimant's overall evidence met the statutory burden despite marginal work search efforts
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Join FLexlaw to unlock all legal intelligenceThe claimant was injured in 1987 and was unable to perform his former duties as a truck driver and mechanic. During earlier months of his job search, …
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WENTWORTH, Judge.
Employer/carrier appeal a workers’ compensation order by which claimant was awarded wage loss benefits. While claimant’s monthly work searches varied in intensity, and were marginal at times, the evidence as a whole is sufficient to meet the burden imposed by section 440.-15(3)(b)2, Florida Statutes (1987), as delineated in City of Clermont v. Rumph, 450 So. 2d 573 (Fla. 1st DCA 1984), pet. for rev. denied 458 So. 2d 271 (Fla.1984), for wage loss benefits. Although claimant’s work search encompassed only approximately half a dozen telephone contacts during the months immediately preceding the hearing, claimant noted that he was advised by employer/carrier that “they were not liable” for further compensation and that he “had no benefits.” Claimant also explained that financial difficulties resulted in his vehicle being repossessed so that he had no transportation for an extensive work search during the months immediately preceding the hearing.
However, during earlier months when transportation was available claimant made over 40 potential employment contacts, as well as repeated visits to rehabilitation/employment services. The 49-year-old claimant has a limited employment history consisting mainly of work as a truck driver and mechanic, and found that after the industrial injury he was unable to satisfactorily perform the physical duties of his former employment. Claimant applied for a variety of different jobs during his work search, and considering the totality of the circumstances there is sufficient evidence to support the judge’s finding that claimant met his burden of demonstrating a causal connection between the industrial injury and the claimed wage loss.
Contrary to employer/carrier’s contention, neither Rumph nor W.R. Grace & Co. v. Shaw, 497 So. 2d 941 (Fla. 1st DCA 1986), establishes any absolute number of minimum or average monthly contacts as a threshold requirement for an adequate work search. The decisions of this court have cautioned against such a mechanical approach, emphasizing instead that the adequacy of a work search is a factual issue which is dependent upon the totality of circumstances, including quality and context as well as number of job contacts, in each case. See e.g., Paramount Poultry v. Mims, 472 So. 2d 1281 (Fla. 1st DCA 1985); Regency Inn v. Johnson, 422 So. 2d 870 (Fla. 1st DCA 1982), opin. on reh. en banc. Nor does the 1990 amendment to section 440.15(3)(b)2, by chapter 90-201, Laws of Florida (1990), which prescribes a minimum of five job contacts in each biweekly period during a work search, alter the result in this case. Even if the amendment were to be construed as creating a numerical threshold requirement, such a substantive amendment would not be appli cable to this claimant who was injured in 1987, before the effective date of the amendment. Cf., Sullivan v. Mayo, 121 So. 2d 424 (Fla.1960).
The order appealed is affirmed.
JOANOS and ALLEN, JJ., concur.
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Litvin v. ST. Lucie Cnty. Sheriff's Dep't & Crawford & Co., 599 So. 2d 1353 (Fla. 1st DCA 1992)…concluded that chapter 90-201 would be void only as of the date of the Martinez opinion (which was after the pertinent periods of wage loss in the present case), and that the decision would operate only prospectively. . In GCC Beverages v. Simmons, 571 So. 2d 59 (Fla. 1st DCA 1990), this court suggested that the job search amendment to section 440.15(3)(b)2 is a substantive change which should not be applied in connection with an injury occurring before the effective date of the amendment. The opinion conta…
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Borges v. Osceola Farms Co. & Nat'l Emp'rs Co., 651 So. 2d 173 (Fla. 1st DCA 1995)…st DCA 1990). Accord Gill v. USX Corp., 588 So. 2d 1035, 1037-38 (Fla. 1st DCA 1991) (adequacy of [*175] work search is just one factor in determination of benefits; other factors include age, education, work history, etc.); GCC Beverage v. Simmons, 571 So. 2d 59, 60 (Fla. 1st DCA 1990) (adequacy of work search is a factual matter which is dependent on the totality of the circumstances); Flesche v. Interstate Warehouse, 411 So. 2d 919, 922 n. 3 (Fla. 1st DCA 1982) (there are a number of criteria by which wag…
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Korody v. Quality Steel & Claims Ctr., 694 So. 2d 40 (Fla. 1st DCA 1997)…approach, emphasizing instead that the adequacy of a work search is a factual issue which is dependent upon the totality of the circumstances, including quality and context as well as number of job contacts, in each case.” GCC Beverages v. Simmons, 571 So. 2d 59, 60 (Fla. 1st DCA 1990). This record contains competent substantial evidence upon which the JCC could justifiably conclude that claimant’s work search was inadequate. The JCC, as the trier of fact, is responsible for making credibility determinatio…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Regency INN v. Johnson, 422 So. 2d 870 (Fla. 1st DCA 1982)
- Sullivan v. Mayo, 121 So. 2d 424 (Fla. 1960)
- City OF Clermont & Aetna Ins. Co. v. Rumph, 450 So. 2d 573 (Fla. 1st DCA 1984)
- Paramount Poultry & Gab Bus. Servs., Inc. v. Mims, 472 So. 2d 1281 (Fla. 1st DCA 1985)
- W.R. Grace & Co. & CNA Ins. Grp. v. Shaw, 497 So. 2d 941 (Fla. 1st DCA 1986)