ARTHUR VAN DORAN, APPELLANT,
v.
THE POPE COMPANY AND ASSOCIATED INDUSTRIES, INC., APPELLEES

Fla. 1st DCA | 1995-01-04
No. 93-1387
WEBSTER, J., concurs., LAWRENCE, J., concurs and dissents with written opinion.
657 So. 2d 1183 Florida District Court of Appeal, First District (1995) Positive Treatment
Cited by 4 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

A workers' compensation claimant appeals the denial of his wage loss claim based on insufficient job search efforts. The court reverses, holding that a claimant may be entitled to deemed earnings even without an adequate job search, provided the necessary causal connection between the industrial injury and wage loss is established.


Holding

A claimant may recover deemed earnings despite an insufficient job search if the claimant establishes the necessary causal relationship between the industrial injury and subsequent wage loss. While procedural filing requirements apply to wage loss requests, they do not require a job search when a job search is not an essential component of the underlying substantive entitlement to deemed earnings.


Headnotes

[1] A denial of a wage loss claim based on an insufficient job search does not preclude an award based on deemed earnings if the claimant establishes the necessary causal rel…

[2] The filing procedures for wage loss forms and job search reports, as provided by statute, apply to subsequent periods of wage loss regardless of the date of accident.

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Key Quotes

“a wage loss claim was denied upon a finding that the claimant did not make a sufficient job search. This does not necessarily preclude an award based on deemed earnings, if the claimant otherwise establishes the necessary causal relation between an industrial injury and subsequent wage loss.”

Establishes the core holding that job search sufficiency is not determinative of deemed earnings entitlement

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Facts & Procedural History

Van Doran filed a wage loss claim in a workers' compensation case. The lower tribunal denied the claim based on finding that Van Doran did not conduct…

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Opinion of the Court
ALLEN, Judge.

ALLEN, Judge.

The claimant appeals a workers’ compensation order by which a wage loss claim was denied. We conclude that the order fails to adequately address the circumstances pertaining to the claimant’s possible entitlement to an award based on deemed earnings.

The wage loss claim was denied upon a finding that the claimant did not make a sufficient job search. This does not necessarily preclude an award based on deemed earnings, if the claimant otherwise establishes the necessary causal relation between an industrial injury and subsequent wage loss. E.g., Wohlgamwth v. Central Maintenance and Welding, 600 So. 2d 514 (Fla. 1st DCA 1992); Publix Supermarkets v. Franklin, 467 So. 2d 1031 (Fla. 1st DCA 1985). As these cases indicate, a variety of factors apart from an unsuccessful job search may impact the determination as to whether the claimant has shown that the industrial injury affected a diminution in earnings. In the present case there is record evidence which could support an award based on deemed earnings.

Together with the deemed earnings issue, this case involves a dispute as to whether the claimant made timely wage loss requests. Section 440.15(3)(b)2, Florida Statutes (1991), provides that wage loss forms and job search reports are to be mailed within 14 days after the time benefits are due. The filing procedures in this statute apply to subsequent periods of wage loss, regardless of the date of accident. Litvin v. St. Lucie County Sheriff’s Dept., 599 So. 2d 1353 (Fla. 1st DCA), rev. denied, 613 So. 2d 6 (Fla.1992), cert. denied, — U.S. —, 113 S.Ct. 2350, 124 L.Ed.2d 258 (1993). Such procedures thus pertain to the claimed period of wage loss in the present ease, even though the claimant’s accident preceded the effective date of the statutory provision. The process in § 440.15(3)(b)2, Florida Statutes (1991), by which an employer may invoke its right to rely on deemed earnings is likewise a procedural enactment which applies to subsequent periods of wage loss. See McCarthy v. Bay Area Signs, 639 So. 2d 1114 (Fla. 1st DCA 1994). But the underlying entitlement to an award based on deemed earnings is a substantive right. Because substantive rights are fixed at the time of accident and injury, see e.g., Walker & LaBerge, Inc. v. Halligan, 344 So. 2d 239 (Fla.1977); Sullivan v. Mayo, 121 So. 2d 424 (Fla.1960), the claimant’s potential entitlement to an award based on deemed earnings is governed by the substantive provisions in § 440.15(8)(b)2, Florida Statutes (Supp.1988), as effective on the date of accident.

This potential substantive entitlement nevertheless remains subject to the filing procedures in § 440.15(3)(b)2, Florida Statutes (1991). But these procedures will not compel the performance of a job search, or the filing of job search reports, when a job search is not an essential component of the underlying substantive entitlement. In the present case the claimant thus need only have timely mailed the wage loss forms in accordance with section 440.15(3)(b)(2), Florida Statutes (1991), and the claimant may thereafter rely on the substantive provisions in section 440.15(3)(b)2, Florida Statutes (Supp.1988), with regard to deemed earnings.

Because the appealed order does not resolve the dispute regarding the timeliness of the claimant’s wage loss requests, and otherwise fails to adequately address the circumstances pertaining to a possible award based on deemed earnings, the order is reversed and the case is remanded.

WEBSTER, J., concurs.

LAWRENCE, J., concurs and dissents with written opinion.

Other
LAWRENCE, Judge,

LAWRENCE, Judge,

concurring and dissenting.

I cannot agree that deemed earnings is a substantive right for some purposes, but a mere procedural device for other purposes. I nevertheless concur in the result, because reversal is required by precedent set in Wohlgamwth v. Central Maintenance & Welding, 600 So. 2d 514, 515 (Fla. 1st DCA 1992); and Braithwaite v. Department of Transportation, 622 So. 2d 109, 111 (Fla. 1st DCA 1993). I therefore join in the result.


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Citator

Cited By

  • Dannie Williams v. City OF Largo & Alexis Risk Mgmt., 668 So. 2d 293 (Fla. 1st DCA 1996)
    …claimant did not perform adequate work searches The employer/carrier properly concede that the claimant’s failure to perform work searches did not preclude award of wage loss benefits on a deemed earnings basis. See Van Doran v. The Pope Company, 657 So. 2d 1183 (Fla. 1st DCA 1995). Accordingly, the [*294] denial of wage loss benefits for the foregoing periods is reversed, and, on remand, the judge is directed to consider whether the claimant is entitled to wage loss benefits, as to the periods for which wa…
  • Owen Steel Co. & Wausau Ins. Cos. v. Robinson, 687 So. 2d 352 (Fla. 1st DCA 1997)
    …ot supported by the record and because the claimant failed to file the wage loss request forms required by section 440.15(3)(b)2, Florida Statutes, and Rule 38F3.017(1), Florida Administrative Code, without any excuse. See Van Doran v. Pope Company, 657 So. 2d 1183 (Fla. 1st DCA 1995); Atlantic Sugar Association v. Raga, 652 So. 2d 508 (Fla. 1st DCA 1995); Litvin v. St. Lucie County Sheriff’s Department, 599 So. 2d 1353 (Fla. 1st DCA), rev. denied, 613 So. 2d 6 (Fla.1992), cert. denied, 508 U.S. 913, 113 S.Ct.…

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