Braithwaite v. Department of Transp.

• Decision Date: 28 July 1993
• Docket Number: No. 92-968,92-968
• Citation: 622 So.2d 109
• Parties: 18 Fla. L. Week. D1681 Nancy BRAITHWAITE, Appellant, v. DEPARTMENT OF TRANSPORTATION and Crawford & Company, Appellees.
• Court: Florida District Court of Appeals

Page 109

622 So.2d 109

18 Fla. L. Week. D1681

Nancy BRAITHWAITE, Appellant, v. DEPARTMENT OF TRANSPORTATION and Crawford & Company, Appellees.

No. 92-968.

District Court of Appeal of Florida First District.

July 28, 1993.

Thomas R. Mooney of Meyers, Mooney, Schott & Meyers, Orlando, for appellant.

Trent W. Ling of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for appellees.

WOLF, Judge.

Nancy Braithwaite, claimant, challenges a final order of the judge of compensation claims (JCC) granting appellant temporary partial disability benefits for certain portions of the period between May 1, 1988 and May 27, 1991, and denying these benefits for other portions of the same period. Claimant asserts, among other things, that the order is internally inconsistent and that there are insufficient factual findings to support the denial of benefits. We agree, and reverse and remand.

The claimant suffered an industrial accident on July 17, 1984. A hearing was originally held in October of 1986 regarding the claimant's claim for temporary total disability (TTD), temporary partial disability (TPD), or wage-loss benefits from May 1985 through October 13, 1986. The JCC denied the claim for the period of May 1985 through October 10, 1986, except between February 6, 1986, and April 1, 1986. The JCC found that the claimant's testimony regarding a job search was not credible, and that her employment with her husband constituted a voluntary limitation of income. The JCC also found that claimant left her prior employment voluntarily, that employment was still open to her, and that claimant had no physical restrictions which were causing a change in employment status. These findings were not appealed. The claimant then filed a claim for TTD, TPD, and wage-loss benefits from March 1, 1988, through May 27, 1991.

At the hearing as to these benefits, medical testimony indicated that claimant was totally disabled beginning May 28, 1991, as a result of her industrial accident. No direct medical evidence was presented concerning whether claimant could work between March 1, 1988, and May 27, 1991. Claimant testified, however, as to her inability to work as a result of the incident in question.

At certain times during this period in question, claimant worked 16 hours a week in her husband's business. Claimant received $320 a month toward health insurance for this work (an amount less than the average weekly wage from claimant's previous employment). Any job search by the claimant during this period was at best perfunctory. The JCC found, however, that "the claimant was temporarily partially disabled between March 1, 1988, through and including May 27, 1991." Based upon this finding, the JCC awarded TPD between May 1, 1988, and May 27, 1991, "with the exception of those periods of time the claimant was employed." The awarding of partial disability benefits for portions of this period is inconsistent with the total denial of benefits for other portions of the period in question where there are insufficient factual findings to justify the disparate treatment.

In Publix Supermarkets, Inc. v. Hart, 609 So.2d 1342, 1344 (Fla. 1st DCA 1992), this court set out the appropriate test for determining whether a claimant is eligible for benefits:

In asserting a claim for benefits, the initial burden is on the claimant to demonstrate an entitlement to benefits upon a change in employment status due to a compensable injury. Sec. 440.15(3)(b)2, Fla.Stat.; Edwards v. Caulfield, 560 So.2d 364 (Fla. 1st DCA 1990). Depending upon the circumstances, this burden may be satisfied by proof which encompasses medical evidence or evidence of a good faith work search. Meek v. Layne-Western Co., 566 So.2d 31 (Fla. 1st...