Burger King v. Nicholas, 90-02255
| Citation | 580 So.2d 656 |
| Decision Date | 30 May 1991 |
| Docket Number | No. 90-02255,90-02255 |
| Parties | BURGER KING and CIGNA, Appellants, v. Deborah NICHOLAS, Appellee. 580 So.2d 656, 16 Fla. L. Week. D1473 |
| Court | Court of Appeal of Florida (US) |
Bruce R. Kaster of Cone, Green & Kaster, P.A., Ocala, for appellants.
Dorothy Clay Sims of Sims & DiLorenzo, P.A., Ocala, and Jonathan D. Ohlman of Pattillo & McKeever, P.A., Ocala, for appellee.
This cause is before us on appeal of an order awarding unspecified compensation benefits. For the following reasons, we reverse.
In November 1987, claimant was injured in a work-related accident when she was struck on the arm by a piece of steel. Claimant was treated at an outpatient medical center, and released to work the same day with no limitations. Claimant continued working but was terminated two weeks later for reasons unrelated to her injury. 1
On January 11, 1988, claimant's authorized physician, Dr. Thompson, diagnosed slight tenderness in the biceps region but good range of motion in the wrist, elbow, and shoulder of the injured arm. Dr. Thompson released claimant to work on this date. On February 15, 1988, Dr. Thompson rediagnosed claimant and found tenosynovitis but noted that claimant had full range of motion with her arm.
On February 29, 1988, claimant obtained employment with Hardee's but subsequently resigned because of her pregnancy. After the birth of her child, claimant began working for Quik Trip. One month later, claimant terminated this employment and began working for Kwik King. Claimant remained employed until April 1989, when she resigned because her husband found higher-paying employment.
Thereafter, claimant filed a claim for temporary total disability (TTD), temporary partial disability (TPD), and wage-loss benefits for the period December 12, 1987 through March 31, 1988, and April 1, 1989 through July 3, 1989. The judge of compensation claims (JCC) found that claimant had been fired by Burger King, had not been advised of her right to receive wage-loss benefits, and that claimant performed a good-faith work search. The JCC awarded claimant benefits for the disputed periods but did not specify what classification of benefits were awarded. However, appellee concedes that the JCC awarded TPD benefits. We find that CSE does not support an award of TPD benefits.
In order to receive TPD benefits, claimant must establish a change in employment status due to a compensable injury and a good-faith work search. Edwards v. Caulfield, 560 So.2d 364 (Fla. 1st DCA 1990). In the instant case, claimant's responsibility to perform a work search is excused because of the employer and carrier's failure to inform her of this requirement. Coq v. Fuchs Baking Co., 507 So.2d 138 (Fla. 1st DCA 1987). However, claimant has failed to prove a change in employment status as a result of the injury.
The test for whether physical limitations subsequent to an...
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Betancourt v. Sears Roebuck & Co.
...no negative change in employment status due to the compensable accident, claimant is not entitled to benefits); Burger King v. Nicholas, 580 So.2d 656, 658 (Fla. 1st DCA 1991) (claimant who injured arm, but who was released to work without restrictions and then fired two weeks later for chr......
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Thompson v. City of Jacksonville, 92-3783
...claimant's capabilities allow h[im] to return to and perform adequately h[is] prior job with the employer." Burger King v. Nicholas, 580 So.2d 656, 658 (Fla. 1st DCA 1991). Here the judge of compensation claims found that Thompson was physically capable of returning to City Hall; the job wa......
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Publix Supermarket, Inc. v. Hart
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