JOSE FERNANDEZ, APPELLANT,
v.
CITY OF TAMPA AND ALEXSIS RISK MANAGEMENT, INC., APPELLEES
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In this workers' compensation case, the court reversed the judge of compensation claims' denial of permanent total disability (PTD) benefits because the JCC failed to address evidence of the claimant's extensive job search, despite finding the claimant could perform light work. The court affirmed the denial of attorney's fees for lack of proper notice to the JCC.
The JCC's order denying PTD benefits was facially insufficient because it failed to address the adequacy of the claimant's job search, which is an alternative basis for establishing PTD entitlement even when light work capability exists. The denial of attorney's fees was proper because the claimant never advised the JCC that he sought fees based on bad faith.
[1] A workers' compensation claimant can establish entitlement to permanent total disability benefits through evidence of a lengthy and unsuccessful job search, even without…
[2] A judge of compensation claims commits error by failing to address the adequacy of a claimant's job search when determining entitlement to permanent total disability bene…
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“To establish entitlement to PTD benefits, a claimant must show either that he is unable to do light work uninterruptedly due to physical limitations, or that he has conducted a lengthy exhaustive job search which has proved futile.”
Establishes the two alternative pathways to proving PTD entitlement, the second of which the JCC failed to address.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJose Fernandez sought PTD benefits after a work injury. The JCC found competent substantial evidence from multiple physicians (Dr. Castellvi, Dr. Shre…
The full statement of facts, procedural history, and disposition for this case are member content.
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KAHN, Judge.
In this workers’ compensation case, the judge of compensation claims (JCC) denied a claim for permanent total disability (PTD) benefits and also denied an award of attorney’s fees to claimant.
On appeal, claimant Jose Fernandez argues that denial of PTD benefits was improper since the JCC did not address claimant’s job search. Claimant also argues that he was entitled to an award of bad faith attorney’s fees, section 440.34(3)(b), Florida Statutes (1983), because appellee failed to properly investigate and handle two wage-loss claims, the correctness of which were conceded by appellee during the merits hearing in this case.
We affirm the denial of attorney’s fees because claimant never advised the JCC that he sought an award of attorney’s fees based upon the employer’s bad faith. On the denial of PTD benefits, however, we agree with claimant and hold that the order on review is facially insufficient to support denial.
“To establish entitlement to PTD benefits, a claimant must show either that he is unable to do light work uninterruptedly due to physical limitations, or that he has conducted a lengthy exhaustive job search which has proved futile.” Carter v. City of Venice, 584 So. 2d 577, 578 (Fla. 1st DCA 1991). In the present case, claimant attempted to prove entitlement to PTD benefits both by his physical inability to perform light work uninterruptedly, and by evidence of a lengthy, yet unsuccessful, job search. Competent substantial evidence, in the form of testimony given by Dr. Castellvi, Dr. Shreeve, and Dr. Newman, supports the JCC’s conclusion that claimant can perform light work.
However, “[e]ven without medical restrictions against light work, a claimant can establish entitlement to PTD through evidence of a lengthy yet unsuccessful job search.” Kaiser Aluminum & Chem. v. Taylor, 578 So. 2d 432, 434 (Fla. 1st DCA 1991). The JCC failed to address the job search issue, even though claimant presented evidence that during his two-and-a-half year wage-loss period he contacted 307 prospective employers. While we are not in a position to make definitive comment upon the sufficiency of this job search as a factual matter, we find that the JCC committed error by not even addressing the adequacy of claimant’s efforts. See Vargas v. AMI Kendall Regional Hosp., 629 So. 2d 993, 994 (Fla. 1st DCA 1993).
The portion of the order denying PTD benefits is REVERSED. The cause is REMANDED with instructions that the JCC specifically address the adequacy of claimant’s job search as it relates to the claim for PTD benefits.
BARFIELD and DAVIS, JJ., concur.
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Citator
Cited By
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Vickers v. Emergency ONE, Inc., 680 So. 2d 1076 (Fla. 1st DCA 1996)…itlement to PTD benefits, a claimant must show an inability to do light duty work uninterruptedly due to physical limitations, or establish that he has conducted a lengthy and exhaustive job search that has proved futile. Fernandez v. City of Tampa, 656 So. 2d 575 (Fla. 1st DCA 1995). In the present case, the claimant asserted that he was entitled to PTD benefits based upon evidence of a severe but not totally disabling impairment and evidence of a lengthy and exhaustive, but unsuccessful job search. The Judg…
Authorities Cited
- Carter v. City OF Venice, 584 So. 2d 577 (Fla. 1st DCA 1991)
- Kaiser Aluminum & Chem. & Alexis Risk Mgmt. Servs. v. Lovett W. Taylor, 578 So. 2d 432 (Fla. 1st DCA 1991)
- Vargas v. AMI Kendall Reg'l Hosp. & Alexsis, Inc., 629 So. 2d 993 (Fla. 1st DCA 1993)