Baggett v. Mulberry Const. Co.

• Decision Date: 31 August 1989
• Docket Number: No. 88-1231,88-1231
• Parties: 14 Fla. L. Weekly 2035 Charles BAGGETT, Appellant, v. MULBERRY CONSTRUCTION COMPANY and Adjustco, Appellees.
• Court: Florida District Court of Appeals

Page 1386

549 So.2d 1386

14 Fla. L. Weekly 2035

Charles BAGGETT, Appellant, v. MULBERRY CONSTRUCTION COMPANY and Adjustco, Appellees.

No. 88-1231.

District Court of Appeal of Florida,

First District.

Aug. 31, 1989.

Rehearing Denied Nov. 7, 1989.

Dean Burnetti, of H. Guy Smith, P.A., Lakeland, for appellant.

Lamar D. Oxford, of Dean, Ringers, Morgan & Lawton, Orlando, for appellees.

JOANOS, Judge.

Charles Baggett appeals a workers' compensation order in which the deputy commissioner denied his claim for temporary partial disability benefits. The narrow question raised in this appeal is whether the deputy commissioner erred in failing to apply the deemed earnings provisions to Baggett's temporary partial wage loss for the period from December 18, 1981, through August 31, 1987. We reverse.

On September 9, 1981, Baggett sustained crushing injuries when a 1,200 pound steel plate slipped and fell on him. Baggett has been a structural steel worker since 1961, and was so employed with Mulberry Construction Company (Mulberry) when the accident occurred. The record reflects that although Baggett was examined by numerous physicians for several years following the accident, the precise nature of his continuing pain and lack of right shoulder mobility were not discovered until 1984, when Dr. Surgnier, an orthopedic surgeon, found he had a fracture of the extreme distal end of the clavicle, that was involved in the achroclavicular joint. Dr. Surgnier recommended surgery, and stated that he could determine whether Baggett would have any permanent residuals from the accident after surgery was performed. In Dr. Surgnier's opinion, Baggett has been temporarily totally disabled since the September 1981 accident.

Subsequent medical examinations in 1986 and in 1987, confirmed Dr. Surgnier's diagnosis, and further revealed that Baggett also suffers from cervical disc disease and separation of the right shoulder joint, attributable to the industrial injury on September 9, 1981. In the opinion of Dr. Rechtine, an orthopedic surgeon who examined Baggett on February 19, 1988, and Dr. Earp, an orthopedic specialist who examined him on March 30, 1988, Baggett should be restricted to part-time light duty work, with limitations on weight lifting of no more than twenty to twenty-five pounds, no overhead reaching on a repetitive basis, and no work that requires shoulder movement.

Baggett was first released to light duty work in October 1981, and again in December 1981, before the full extent of his injuries was understood. Baggett testified that when he returned to work at Mulberry, he did everything that he was directed to do, but was unable to perform his work properly. Baggett also stated that "there is no such thing as light duty on a job like that."

The record further reflects that due to economic hardship caused by his inability to work, Baggett was unable to maintain his union membership, and unable to make payment on property he and his wife had purchased three years before. In January 1982, Baggett and his wife moved to Altha to live with his wife's parents. Although Baggett's shoulder continued to cause him problems, he returned to Polk County in February 1982, in an effort to continue as a structural steel worker. In February and March 1982, he worked on a dragline for W.R. Grace Company, but was laid off on April 2, 1982. Baggett then returned to Altha, where he assisted his wife in the operation of a group living facility she had installed in her parents' home during the two-month period that he was working in Polk County.

The record indicates that the work performed by Baggett in connection with operation of the group living facility would be classified as light duty. He acknowledged that he did not look for other work during the time he worked with his wife in the Altha venture. The record also reflects that the employer/carrier did not advise Baggett concerning his rights and duties with respect to wage loss or temporary partial wage loss benefits, or of his duty to perform and to document a good faith job search. On August 15, 1987, Baggett and his wife separated, and he returned to the central Florida area. From that time forward, on the advice of his attorney, Baggett performed and documented a job search.

Based in part on the testimony of the employer/carrier's rehabilitation specialist, the deputy commissioner found that since December 1981, Baggett has had the ability to earn at least $6.00 per hour for a forty-hour work week. The deputy further found that wage loss benefits should be paid on the basis of $240 per week from September 1, 1987, through May 12, 1988, and continuing, until changed facts indicate otherwise. The claim for temporary partial disability benefits from December 18, 1981, through August 31, 1987, was denied, based on the finding that Baggett removed himself from the job market during that period of time in order to devote his time to the operation of the group living facility. The deputy characterized Baggett's conduct as a predesigned business decision that was not injury related.

At the outset, we note this court has determined on numerous occasions that a claimant's obligation to conduct a good faith work search is excused where the employer/carrier fail to advise the claimant of his rights and responsibilities under the Workers' Compensation Act. Ninia v. Southwest Bottlers, 547 So.2d 966 (Fla. 1st DCA 1989); Mackin v. Olde World Cheese Shop, 536 So.2d 301, 303 (Fla. 1st DCA 1988); Griffith v. McDonalds, 526 So.2d 1032, 1033 (Fla. 1st DCA 1988); Rios v. Fred Teitelbaum Construction, 522 So.2d 1015, 1017 (Fla. 1st DCA 1988); Lopez v. Nabisco Brands, Inc., 516 So.2d 993 (Fla. 1st DCA 1987); Coq v. Fuchs Baking Co., 507 So.2d 138 (Fla. 1st DCA 1987); Morris v. Metal Industries, 491 So.2d 312 (Fla. 1st DCA 1986); DeFrees v. Colt and Dumont/Hit Sales, 483 So.2d 848 (Fla. 1st DCA 1986).

It is undisputed that employer/carrier in this case failed to advise claimant of his work search obligation or of his possible entitlement to workers' compensation benefits. Generally, this dereliction on the part of the employer/carrier would entitle claimant to wage-loss benefits calculated on the basis of actual wage loss during the time period at issue, as opposed to wage-loss benefits calculated on the basis of deemed earnings. See Mackin v. Olde World Cheese Shop, 536 So.2d at 302-303.

Here, the deputy commissioner made no express finding concerning claimant's failure to conduct a work search for the period from December 18, 1981, through August 31, 1987, the period for which all benefits were denied. Rather, the deputy commissioner found that claimant's decision to operate the group living facility with his wife was not related to his on-the-job injury. Although claimant noted in his initial brief that his failure to perform a work search for the time period at issue should be excused due to employer/carrier's failure to advise him of his rights and responsibilities, the primary argument advanced in the initial brief and the reply brief is that claimant should be awarded temporary partial wage-loss benefits based on the deemed earnings provision of section 440.15(4)(b), Florida Statutes (1981), for the December 18, 1981, through August 31, 1987, time period. Thus, the issue raised in this appeal and the arguments advanced in support thereof indicate that claimant is in essential agreement with the deputy commissioner's determination that benefits should be calculated on the basis of deemed earnings. In the circumstances, we find there has been an...