NELLIE MARBURY, APPELLANT,
v.
HOLIDAY INN, APPELLEE
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In this workers' compensation appeal, the Florida First District Court of Appeal reversed the judge of compensation claims' denial of wage loss benefits to claimant Nellie Marbury, finding that the employer/carrier failed to provide actual notice of job search requirements and improperly relied on the unraised voluntary limitation of income defense.
The court reversed because: (1) the voluntary limitation of income defense was never properly raised by the employer/carrier and thus could not support denial of benefits; and (2) the employer/carrier bore the burden of proving claimant's actual knowledge of all statutory job search requirements, which it failed to do, making the blanket denial of wage loss benefits improper.
[1] A voluntary limitation of income defense in a workers' compensation claim cannot be relied upon by a judge of compensation claims if it was not properly raised by the emp…
[2] In workers' compensation cases, the employer/carrier bears the burden of proving that a claimant had actual notice of the job search and wage loss reporting requirements.
Previewing 2 of 4 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 voluntary limitation of income defense was never raised properly by the employer/carrier, and thus the JCC should not have made a finding in reliance upon this defense”
Establishes that affirmative defenses must be properly raised and cannot be considered sua sponte by the court.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceNellie Marbury, a workers' compensation claimant, sought wage loss benefits following an injury that required surgery by an orthopedic surgeon. The ju…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Appellant Nellie Marbury, claimant in this workers’ compensation matter, challenges the judge of compensation claims (JCC) denial of her claim for wage loss benefits. We reverse.
The JCC did not err in rejecting the testimony of claimant’s chiropractor in favor of the testimony of several orthopedic surgeons, including the one who actually operated on claimant. She did, however, err in certain rulings concerning the job search requirement and the defense of voluntary limitation of income. Specifically, the voluntary limitation of income defense was never raised properly by the employer/carrier, and thus the JCC should not have made a finding in reliance upon this defense. See Scherreiks v. A & B Roofing, Inc., 571 So. 2d 73 (Fla. 1st DCA 1990) (although record might contain competent substantial evidence for a finding of voluntary limitation of income, such was not raised as a defense by the employer/carrier).
On the question of the adequacy of claimant’s job search, the JCC relied extensively upon this court’s decisions in Litvin v. St. Lucie County Sheriff’s Dep’t, 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), and Scotty’s v. Jacoby, 611 So. 2d 101 (Fla. 1st DCA 1992).
In these cases, we held that under section 440.15(3)(b)2., Florida Statutes (1990 Supp.), a claimant’s work search responsibility is now predicated upon actual notice, rather than solely upon notice given by the employer/carrier. We have subsequently noted, however, that mere general knowledge of a work search requirement is not sufficient to bar wage loss. Turner v. Rinker Materials, 622 So. 2d 80 (Fla. 1st DCA 1993).
Rather, since the workers’ compensation remains an employer/carrier monitored system, the burden is upon the E/C to demonstrate “the claimant knew of the job search requirement and wage loss reporting requirement.” Id. at 86.
See also Mac Papers, Inc. v. Cruz, 658 So. 2d 108, 110 (Fla. 1st DCA 1995) (‘Where the employee’s actual knowledge becomes an issue, the employer bears the burden of proving the employee’s knowledge of all statutory requirements regarding the performance of a job search to avoid the obligation in section 440.15(3)(b)2”).
In the present case actual notice to claimant did become an issue and employer/carrier conceded it had not provided a wage loss letter to claimant. Although employer/carrier demonstrated that claimant had filed wage loss requests, no evidence appears indicating claimant’s actual knowledge of all statutory requirements regarding the performance of a job search.
Accordingly the JCC erred in the blanket denial of wage loss benefits based upon inadequate job search for the period from October 1,1991 through the date of the hearing in this ease.
REVERSED and REMANDED for further proceedings consistent with this opinion.
ERVIN, JOANOS and KAHN, JJ., concur.
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Kilbourne & Sons & Nationwide Ins. v. Kilbourne, 677 So. 2d 855 (Fla. 1st DCA 1995)…uirement to perform the work search. Section 440.15(3)(b)2, Florida Statutes (Supp.1990). The burden is upon the E/C to demonstrate that the claimant knew of the job search requirement and the wage loss reporting requirement. Marbury v. Holiday Inn, 660 So. 2d 799 (Fla. 1st DCA 1995); Mac Papers, Inc. v. Cruz, 658 So. 2d 108 (Fla. 1st DCA 1995). In Litvin v. St. Lucie County Sheriffs Dept., 599 So. 2d 1353 (Fla. 1st DCA 1992), this court denied wage loss benefits to the claimant during the period that the cla…
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Armstrong v. Ormond IN THE Pines & Wausaw Ins. Co., 734 So. 2d 596 (Fla. 1st DCA 1999)…or sole proprietor actively engaged in the construction industry. Here, the landowner defense “was never raised properly by the employer/carrier, and thus the JCC should not have made a finding in reliance upon this defense.” Marbury v. Holiday Inn, 660 So. 2d 799, 800 (Fla. 1st DCA 1995). Thus, the JCC erred in making, sua sponte, the finding concerning the landowner exception. The JCC’s finding that “the employer is not a business operating in the construction industry” is surplusage. Under the statute, the…
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Meneses v. City Furniture & Liberty Mut. Grp., 34 So. 3d 71 (Fla. 1st DCA 2010)…on the statutory language, this court concluded that the E/C bore the burden of proving Claimant’s knowledge of the job search requirement. See Kilbourne & Sons v. Kilbourne, 677 So. 2d 855, 858 (Fla. 1st DCA 1995); see also Marburg v. Holiday Inn, 660 So. 2d 799, 800 (Fla. 1st DCA 1995). The statutory provision at issue here relates to supplemental income benefits. § 440.15(3)(b), Fla. Stat. (2002). It contains no language to suggest that an e/c carries the burden of proving a claimant’s knowledge of a job…
Authorities Cited
- Litvin v. ST. Lucie Cnty. Sheriff's Dep't & Crawford & Co., 599 So. 2d 1353 (Fla. 1st DCA 1992)
- Dep't of Prof'l Reg. v. Davis, 622 So. 2d 80 (Fla. 1st DCA 1993)
- MAC Papers, Inc. v. Cruz, 658 So. 2d 108 (Fla. 1st DCA 1995)
- Scotty's & CNA Ins. Grp. v. Jacoby, 611 So. 2d 101 (Fla. 1st DCA 1992)
- Scherreiks v. A & B Roofing, Inc., 571 So. 2d 73 (Fla. 1st DCA 1990)
- Alcoma Packing Co. v. Jones, 571 So. 2d 73 (Fla. 1st DCA 1990)