INTERIM SERVICES & SPECIALTY RISK SERVICES v. Levy

• Decision Date: 21 February 2003
• Docket Number: No. 1D02-0681.,1D02-0681.
• Parties: INTERIM SERVICES AND SPECIALTY RISK SERVICES, Appellants, v. Susan LEVY, Appellee.
• Court: Florida District Court of Appeals

843 So.2d 915

INTERIM SERVICES AND SPECIALTY RISK SERVICES, Appellants, v. Susan LEVY, Appellee.

No. 1D02-0681.

District Court of Appeal of Florida, First District.

February 21, 2003.

Rehearing Denied April 17, 2003.

George W. Boring, III of Langston, Hess, Bolton, Znosko, Helm & Allen, P.A., Maitland, for Appellants.

Erick B. Grindal of Pemsler & Grindal, P.A., Coral Gables, for Appellee.

BROWNING, J.

Appellant seeks review of an order of the Judge of Compensation Claims (JCC) awarding temporary partial disability (TPD) benefits to the claimant for her compensable injury. We affirm in part, reverse in part, and remand for further proceedings.

The claimant was injured at work in 1997 but continued to work until August 1998, when she moved to North Carolina. Her job search in North Carolina, which included inquiry with a branch of her former employer, did not result in employment. The claimant filed a petition for benefits that resulted in an award of TPD for the 104 weeks following August 1998 evaluation and treatment by both a neurologist and psychiatrist, penalties and interest on all indemnity, and a denial of impairment and supplemental benefits as premature.

To the extent that Appellant alleges that the claimant was not entitled to benefits from August 1998 forward because she had reached maximum medical improvement (MMI) on September 4, 1997, we hold that there was competent substantial evidence in the record to support the JCC's finding that the claimant had not yet reached MMI. Chavarria v. Selugal Clothing, Inc., 840 So.2d 1071 (Fla. 1st DCA 2003) (en banc). However, we reverse in part the JCC's order for another reason.

A claimant must show a causal connection between his or her injury and a subsequent wage loss before an award of temporary wage loss benefits is appropriate, and Appellant alleges that the claimant failed to meet this requirement. To determine whether an injury and a subsequent wage loss are causally connected, a JCC is to consider the totality of the circumstances. E.g., Betancourt v. Sears Roebuck & Co., 693 So.2d 680, 684 (Fla. 1st DCA 1997)

. An unsuccessful job search such as the claimant's can be a factor in considering the totality of the circumstances as to the causal connection between the injury and wage loss. Barfield v. Universal Forest Prods., 813 So.2d 285 (Fla. 1st DCA 2002). However, the performance of a job search does not itself establish a causal relationship. Thompson v. City of Jacksonville, 654 So.2d 1178, 1180 (Fla. 1st DCA 1995). Generally, to establish such a causal relationship, a claimant can show that his or her capabilities preclude adequate performance of his or her prior job. Id.; Nickolls v. Univ. of Fla., 606 So.2d 410, 413 (Fla. 1st DCA 1992); Burger King v....