Carpenters R.V. Service v. Eckert

• Decision Date: 05 September 1984
• Docket Number: No. AX-40,AX-40
• Parties: CARPENTERS R.V. SERVICE and South Carolina Insurance Company, Appellants, v. Albert E. ECKERT, Appellee.
• Court: Florida District Court of Appeals

Page 590

455 So.2d 590

CARPENTERS R.V. SERVICE and South Carolina Insurance Company, Appellants, v. Albert E. ECKERT, Appellee.

No. AX-40.

District Court of Appeal of Florida First District.

Sept. 5, 1984.

Rehearing Denied Oct. 2, 1984.

James N. McConnaughhay & Gordon D. Cherr of Karl, McConnaughhay, Roland & Maida, Tallahassee, for appellants.

James F. McKenzie, Pensacola, for appellee.

NIMMONS, Judge.

The employer and carrier (E/C) appeal from an order awarding wage-loss benefits for the period of May, 1983, through September, 1983. His earnings are derived from his commissions on real estate sales. We affirm.

On August 4, 1979, the claimant, now 51 years old, injured his left shoulder while working as a recreational vehicle maintenance mechanic for the employer, Carpenters R.V. Service. The injury involved a capsular tear over the front part of his left shoulder and resulted in a permanent impairment. The claimant, who is left-handed, was unable to continue in that kind of work or in other work in which he had previously been engaged including plumbing, heating and construction. As the deputy commissioner found in his previous unappealed order entered in 1980 awarding wage loss benefits, claimant's treating physician recommended a change in claimant's vocation because of the problems encountered in using his left arm. Accordingly, the claimant enrolled in a real estate course and passed his real estate license examination. Thereafter, he became employed with a real estate firm and commenced selling real estate on a commission basis.

At the 1980 wage-loss hearing, the E/C contended that the claimant did not make an adequate work search for jobs which he could do without resorting to vocational training to become a real estate salesman. The E/C brought out at the hearing that the claimant had not accepted the employer's offer to try selling recreational vehicles on a straight commission basis. In the 1980 order, the deputy rejected the E/C's contentions, found that the vocational training undertaken by the claimant was appropriate and ordered the E/C to reimburse the claimant the expenses incurred in connection with such training and to pay the claimant wage loss for the period of training and for a period of time after the claimant commenced selling real estate. As previously noted, that order was not appealed.

Thereafter, the E/C voluntarily paid wage-loss benefits for those months in which the claimant's earnings from his sales justified such benefits. As the claimant has gained further knowledge and experience in the real estate business, his earnings have steadily increased although they, of course, have varied from month to month. For example, in January 1983, he earned $1,200 in commissions, and the E/C did not have to pay the claimant any benefits. ¹ In February, he earned $600 and the E/C had to pay wage loss. In March, the claimant's earnings were $2,745 and so no benefits were paid. In April, the claimant earned no commissions and so full wage-loss benefits were paid.

In June 1983, the E/C apparently decided that they were not going to pay any more wage-loss benefits because, as they contended, the amounts claimed to be due were caused by the nature of his business as a real estate salesman and not due to his injury. The E/C also asserted at hearing that, because of the fluctuation in claimant's earnings, wage loss should not be calculated on a monthly basis as contemplated by the statute. Instead, the E/C asserted, his earnings for the calendar year should be totalled and compared with his pre-injury annual income.

Our recent case of National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1984), which also involved a wage-loss claim by a claimant engaged in real estate sales, requires rejection of the E/C's contentions ² unless the 1983 amendment to § 440.15(3)(b)2 indicates that a different result should be reached. ³ The portion of the statute added by Chapter 83-305, Laws of Florida, is emphasized in the following excerpt from Section 440.15(3)(b)2:

Whenever a wage-loss benefit as set forth in subparagraph 1. may be payable, the burden shall be on the employee to establish that any wage loss claimed is the result of the compensable injury. It shall also be the burden of the employee to show that his inability to obtain employment or to earn as much as he earned at the time of his industrial accident, is due to physical limitation related to his accident and not because of economic conditions or the unavailability of employment.

This court's interpretation of the amended section in City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), is relevant. There, the employer and carrier argued that the amendment precludes an award of wage-loss benefits unless a claimant...