Burger King Corp. v. Stark

• Decision Date: 11 August 1981
• Docket Number: No. WW-409,WW-409
• Citation: 401 So.2d 1173
• Parties: BURGER KING CORPORATION and Employers Insurance of Wausau, Appellants, v. Joseph STARK, Appellee.
• Court: Florida District Court of Appeals

Page 1173

401 So.2d 1173

BURGER KING CORPORATION and Employers Insurance of Wausau, Appellants, v. Joseph STARK, Appellee.

No. WW-409.

District Court of Appeal of Florida, First District.

Aug. 11, 1981.

Steven Kronenberg of Adams, Kelley & Kronenberg, Miami, for appellants.

Jerold Feuer, Miami, for appellee.

THOMPSON, Judge.

The appellants challenge a workers' compensation Order, contending in part that: (1) the Deputy Commissioner ("the Deputy") erroneously determined that the claimant sustained a permanent partial disability ("PPD") based on loss of wage-earning capacity; and (2) the Deputy erred by finding that the claimant was temporarily totally disabled ("TTD") from April 30 to September 7, 1979. We agree and reverse.

The claimant, an assistant manager for Burger King, sustained a compensable lower back injury in March 1979. He was examined by Dr. Steiner, an orthopedic surgeon, who released the claimant to return to light work on April 23, 1979. The claimant attempted to return to work but after working 2 days he was unable to continue. Shortly thereafter, he terminated his employment with Burger King. He stated that he then attempted to find work in Florida, but he did not recall where he looked. He did apply for a sales position with a real estate company, and he began employment there on June 1, 1979. However, while he worked for this company he received no salary and made no commissions, and on September 21, 1979 his employment was terminated because he was a "non-producer."

On September 7, 1979, the claimant was examined by Dr. Lusskin, an orthopedic surgeon, who noted that the claimant sustained a 15% to 20% anatomical PPD. The Deputy found that the claimant reached maximum medical improvement ("MMI") as of September 7, 1979. Later in September, the claimant moved to California and began delivering pet supplies. Beginning in March 1980, he began to unsuccessfully look for managerial or sedentary work in California.

Hearings began in March 1980, when the following was also received as evidence: The claimant is 26 years old and has a Florida real estate license, as well as a college degree in urban land use planning. His employment application with Burger King also shows that he has college degree in business administration, in addition to employment experience as a building contractor (11/2 years) and an assistant manager in a department store (6 months). He currently considers himself to be in generally good health, except for his back injury.

The Deputy found that the claimant's average weekly wage at Burger King was $310.00, and that his current earnings in California are $165.00 per week. The Deputy also found that the claimant sustained a 55% PPD based on loss of wage-earning capacity, and that he was TTD from April 30 to September 7, 1979.

Loss of wage-earning capacity is generally based on findings "as to whether by virtue of the injury the claimant suffered any reduced capacity to earn in the same or other employment the wages which (he) was receiving at the time of the injury." Ball v. Mann, 75 So.2d 758, 760 (Fla. 1954). See also Southern Bell Tel. & Tel. Co. v. Bell, 116 So.2d 617, 621 (Fla. 1959). In making this determination, § 440.25(3)(c), Fla.Stat. (Supp. 1978) lists numerous factors which should be considered, the first one being the extent of the claimant's actual physical impairment.

The Deputy found, pursuant to Dr. Lusskin's report, a 15% to 20% anatomical impairment. While the appellants dispute the validity of Dr. Lusskin's rating, we find that the Deputy could have properly relied upon that rating.

Another factor to be considered is the wages actually being earned by the claimant after his injury. The appellants contend that the Deputy placed undue emphasis on this factor, see Sterling Equip. Man. Corp. v. May, 144 So.2d 305, 308 (Fla. 1965), and ignored other important factors such as the claimant's age, education, and work experience. See, e. g., Mohawk Construction Co. v. Doty, IRC Order 2-3817 (May 22, 1979); Montgomery Ward v. Hayes, 172 So.2d 581 (Fla. 1965).

The appellants' point is well-taken, especially when viewed in light of another factor: whether the claimant has made a good faith effort to test his wage-earning capacity in the open labor market after reaching MMI. See Burger Chef v. Benedetto, 394 So.2d 206, 207 (Fla. 1st DCA 1981); Exxon Co. v. Alexis, 370 So.2d 1128, 1132 (Fla. 1978). In this case, the Deputy found that "the claimant has conducted a thorough job search and is excused from any further search. His limitations and work history adversely affect his ability to compete for a job even though he is well motivated." This finding is not supported by competent substantial evidence. The claimant simply did not timely and "realistically test his wage-earning capacity in the job market...." Food Fair, Inc. v. Povalitis, 390 So.2d 410 (Fla. 1st DCA 1980). Nor was there any evidence justifying an excusal from the work search requirement. Cf. Benedetto, 394 So.2d at 207 (where such an...