WILLIE CHRISTIAN, APPELLANT,
v.
CAROLINA FREIGHT CARRIER CORPORATION, APPELLEE

Fla. 1st DCA | 1990-12-10
No. 89-661
NIMMONS and ZEHMER, JJ., concur.
571 So. 2d 524 Florida District Court of Appeal, First District (1990) Positive Treatment
Cited by 4 cases

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Synopsis

Willie Christian appeals the denial of wage-loss benefits under Florida's Workers' Compensation Act. The trial court ruled there was no wage loss by including Christian's noncovered employment earnings (VA job) in post-injury calculations while excluding them from pre-injury calculations. The appellate court reversed, holding that noncovered concurrent employment earnings must be treated consistently in both pre- and post-injury wage calculations under the Parrott doctrine.


Holding

The court held that noncovered concurrent employment earnings excluded from pre-injury AWW must also be excluded from post-injury earning capacity calculations, as established in Parrott v. City of Fort Lauderdale. The court further held that the trial court erred in imposing a good-faith work search requirement because the employer failed to properly notify the claimant of this obligation as required by statute.


Headnotes

[1] Earnings from concurrent, noncovered employment excluded from the determination of average weekly wage must also be excluded from the determination of post-recovery earni…

[2] A claimant's enlarged participation in concurrent, noncovered employment after an injury may be considered in determining post-recovery earning capacity.

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Key Quotes

“If earnings from concurrent employment, engaged in by claimant at the time of the injury, are excluded from determination of the average weekly wage, i.e., pre-injury earning capacity, earnings from that same employment should also be excluded from the determination of post-recovery earning capacity.”

Statement of the binding Parrott rule establishing that noncovered concurrent employment must be treated consistently in pre- and post-injury wage calculations.

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Facts & Procedural History

Christian, age 54, worked two jobs at the time of his October 22, 1986 injury: full-time for the Veterans Administration earning $370.53 weekly (nonco…

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Opinion of the Court
BOOTH, Judge.

BOOTH, Judge.

This cause is before us on appeal from a denial of wage-loss benefits.

Claimant, age 54, had two jobs at the time of his injury: he worked full-time for the Veterans Administration as an accountant, earning $370.53 weekly, and part-time, 20 to 30 hours a week, for Carolina Freight Carrier Corporation loading freight and earning $254.55 weekly. Only his job with Carolina Freight was covered employment under the Workers’ Compensation Act.

On October 22, 1986, claimant suffered a compensable injury while working for Carolina Freight. He was able to return to his accounting job after six weeks and continues to earn the same wages at that job as he earned before the injury. He returned to Carolina Freight in March 1987 and worked until November 14, 1987. He has not acquired another job to replace his employment with Carolina Freight. The parties have stipulated that claimant reached maximum medical improvement on October 14, 1987, with a permanent physical impairment.

The judge of compensation claims ruled that claimant’s earnings from his employment with the Veterans Administration was not covered under the Act and therefore was not includable in the determination of the AWW. That ruling is not challenged here. The judge also ruled that the earnings excluded from the preinjury AWW were included in postrecovery earnings. The net result of these rulings is the judge’s finding that there was no wage loss.

In Parrott v. City of Fort Lauderdale, 190 So. 2d 326, 329 (Fla.1966), the Florida Supreme Court held:

If earnings from concurrent employment, engaged in by claimant at the time of the injury, are excluded from determination of the average weekly wage, i.e., pre-in-jury earning capacity, earnings from that same employment should also be excluded from the determination of post-recovery earning capacity. This statement is subject, however, to the proviso that to the extent that the claimant, after injury, enlarges his participation in the concurrent employment as a substitute for the employment in which he was injured, then such enlarged participation may be considered in determining post-recovery earning capacity.

Thus, the Florida Supreme Court in Par-rott held that where noncovered, concurrent earnings are excluded from the determination of AWW, those same earnings must also be excluded in the determination of postrecovery earning capacity. That rule is subject only to an exception not applicable here, that claimant’s increased participation in the concurrent, noncovered employment after the accident can be considered.

The Florida Supreme Court in the Par-rott case, expressly rejected the approach used by the judge in the instant case, stating (190 So. 2d at 329):

[T]o determine loss of wage earning capacity by comparing the average weekly wage, from which earnings from concurrent employment have been excluded, with post-recovery earning capacity, in which earnings from the same concur rent employment are included, obviously produces an unfair result. It does not fairly compensate the employee for loss of wage earning capacity which the statute is designed to do.

The Parrott case has not been overruled, distinguished, or restricted in any way on this issue. The intent and purpose of the Act is the same now as it was at the time of the Parrott decision. The Act is to be liberally construed to protect the employee and to place the financial burden of his loss of wage-earning capacity measured by his past wages upon the industry in which he was working when injured. DeAyala v. Florida Farm Bureau Casualty Ins. Co., 543 So. 2d 204, 207 (Fla.1989); Iley v. Linzey, 531 So. 2d 1361, 1368 (Fla. 1st DCA 1988), review denied, 542 So. 2d 989 (Fla.1989). Section 440.15(3)(b), Florida Statutes, in effect at the time of the accident herein, provides in part:

440.15(3)(b) Wage-loss benefits.—

1. Each injured worker who suffers any permanent impairment ... may be entitled to wage-loss benefits_ Such benefits shall be based on actual wage loss. Subject to the maximum compensation rate as set forth in s. 440.12(2), such wage-loss benefits shall be equal to 95 percent of the difference between 85 percent of the average monthly wage and the salary, wages, and other remuneration the employee is able to earn after reaching maximum medical improvement; however, the monthly wage-loss benefits shall not exceed an amount equal to 66% percent of the employee’s average monthly wage at.the time of the injury....

2. The amount determined to be the salary, wages, and other remunerations the employee is able to earn after reaching the date of maximum medical improvement shall in no case be less than the sum actually being earned by the employee, including earnings from sheltered employment.

Appellee contends subsection (3)(b), supra, as amended effective July 1, 1979, requires a different result from that prescribed in Parrott. There is no case authority supporting that contention,1 and we conclude that it is without merit. Subsection (3)(b) does not address the question of covered and noncovered concurrent employment. The only nonroutine type of postin-jury earnings specified in subsection (3)(b)2 for inclusion are “earnings from sheltered employments.” No mention is made of earnings from noncovered concurrent employment. Assuming such a provision could validly be added to the statute, it was not done. The law remains as set forth in Parrott. Wages from concurrent, noncov-ered employment excluded from AWW are also to be excluded from postinjury earnings. Only in this way can actual wage loss in the covered employment be determined. That rule is subject to the exception stated in Parrott for claimant’s increased participation in the concurrent, noncovered employment after the injury.

The judge also erred in imposing a good-faith work search requirement on claimant, in that the letter sent by the employer did not inform claimant of his obligation to conduct a good-faith work search and was therefore legally insufficient. § 440.185(2)(e), Fla.Stat. (Supp. 1986). Once an employer and carrier are put on sufficient notice of a claim, they have an affirmative obligation to inform the claimant of his rights and obligations under the Act, including the obligation to conduct a good-faith work search. Wilson v. Harris Corporation, 557 So. 2d 50 (Fla. 1st DCA 1989); see also Rios v. Fred Teitelbaum Construction Company, 522 So. 2d 1015 (Fla. 1st DCA 1988); Coq v. Fuchs Baking Company, 507 So. 2d 138 (Fla. 1st DCA 1987). The failure to notify claimant of the obligation to perform a work search after terminating benefits excuses the work search. DeFrees v. Colt and Dumont/Hit Sales, 483 So. 2d 848 (Fla. 1st DCA 1986).

Accordingly, the trial court’s order is reversed and remanded for further proceedings consistent herewith.

NIMMONS and ZEHMER, JJ., concur. . Cases cited by appellee are distinguishable: Anna Maria Fire Control District v. Angell, 528 So. 2d 456 (Fla. 1st DCA 1988); Kemp v. Miami Quality Concrete Company, Inc., 410 So. 2d 199, 200 (Fla. 1st DCA 1982), American Uniform & Rental Service v. Trainer, 262 So. 2d 193 (Fla.1972); Jacquette Motor Co. v. Talley, 134 So. 2d 238 (Fla.1961).

The Angelí case, supra, was relied on by the judge below, who was also the judge in that case. In Angelí, the claimant raised at the hearing level an issue similar to that raised here. However, on appeal, the only contention made and addressed by this court in its opinion was the judge’s erroneous inclusion of concurrent, noncovered earnings in AWW. The exclusion of such wages from postrecovery earnings was not considered or ruled on.


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Citator

Cited By

  • Wal-Mart Stores & Claims Mgmt., Inc. v. Campbell, 694 So. 2d 136 (Fla. 1st DCA 1997)
    …iscretion in establishing an AWW that fairly approximates his demonstrated pre-injury earning capacity. He asserts that concepts of fairness are inherent in the case law addressing AWW calculation, citing Christian v. Carolina Freight Carrier Corp., 571 So. 2d 524 (Fla. 1st DCA 1990); Edwards v. Caulfield, 560 So. 2d 364 (Fla. 1st DCA 1990); and Newell v. Seaboard Contractors, 473 So. 2d 787 (Fla. 1st DCA 1985). He contends that section 440.14(l)(d) allows the JCC discretion to reach an AWW that fairly approx…
  • Hopkins v. State, 596 So. 2d 680 (Fla. 1st DCA 1991)
    …determination of AWW and the uncontroverted evidence indicates that claimant’s participation in the newspaper route has not increased. Parrott v. City of Fort Lauderdale, 190 So. 2d 326 (Fla.1966); Christian v. Carolina Freight Carrier Corporation, 571 So. 2d 524 (Fla. 1st DCA 1990). The judge excused the inadequate work search for the period for which TPD was awarded in this order, because the employer failed to provide adequate forms and instructions to the claimant. Excluding the post-accident earnings f…

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