Chain Store Warehouses v. Picard
| Decision Date | 06 May 1983 |
| Docket Number | No. AN-209,AN-209 |
| Citation | 431 So.2d 685 |
| Parties | CHAIN STORE WAREHOUSES and Aetna Insurance Co., Appellants, v. Edward PICARD, Appellee. |
| Court | Florida District Court of Appeals |
Susan J. Silverman, of Marlow, Shofi, Ortmayer, Smith, Connel & Valerius, Miami, for appellants.
Alfred Kreisler, Miami, for appellee.
The record underlying this $6,000 award of wage-loss benefits and interest evidences a near-total failure of processes intended to discipline the administration of chapter 440. After Picard returned to work in April 1980, upon medical discharge from treatment for compensable fractures of his left arm and sacrum a month earlier, claimant was discharged by his employer, Chain Store Warehouses, because "I wasn't doing my duties the way I was doing them before," due to his painful arm. Notwithstanding his 15 percent permanent impairment rating, the Chain Store Warehouses and carrier Aetna neglected to advise Picard in timely fashion of his possible entitlement to wage-loss benefits until August 1980. For that delay the deputy excused Picard's late filing of accumulated wage-loss claims more than a year later, in September 1981; the propriety of that order is not raised by this appeal. After his discharge in May 1980, Picard did not work for 14 months. He secured new employment in July 1981.
In support of Picard's wage-loss claim, the qualifying testimony elicited by Picard's lawyer, at the February 1982 hearing before the deputy, was remarkably vague:
Q. And you say you kept looking for work the whole time during that period until you--
A. I was looking for a job. I had to support my family.
* * *
Q. Were you turned down anyplace?
A. Sure, a lot of places.
Claimant further testified that he sought placement from the Florida State Employment Service. The direct examination continued:
Q. And where else did you look?
A. Everywhere. I went so many places, I can't remember.
Were we to give strict retroactive application to the standards for such testimony later stated in Regency Inn v. Johnson, 422 So.2d 870, 877 (Fla. 1st DCA 1982), and Conshor, Inc. v. Barnhart, 422 So.2d 946, 947 n. 1 (Fla. 1st DCA 1982), 1 Picard's testimony would be judged insufficient. Yet Aetna's lawyer did not cross-examine Picard concerning the extent of his work search, 2 nor did he raise on the record before the deputy, by objection, motion or argument of any kind, the insufficiency in claimant's testimony complained of here. For his part, the deputy acquiesced in the dubious standards so established by awarding wage-loss benefits without any kind of finding that Picard's work search was adequate under the circumstances.
Aetna's having failed to monitor Picard's work search during the 14 months in which he allegedly pursued it, that being Aetna's fault in neglecting to give Picard notice that would have required more seasonable filings of wage-loss claims; 3 Picard's lawyer's having failed to prepare Picard to testify intelligibly concerning that issue; Aetna's lawyer's having failed to cross-examine or otherwise point up the claimed insufficiencies of that testimony; and the deputy's having failed to express a finding on that issue, we are asked, as one might appropriately ask the forum of first instance, to declare the award insufficiently supported by evidence. Though we are sorely tempted, the need to preserve our role as a court of review, limited to deciding issues of law first presented to a deputy, requires that the award be affirmed for want of a significant contest on the issue below. Stafford Electric Co. v. Fedder, 419 So.2d 733 (Fla. 1st DCA 1982); Sunland Hospital/State of Florida v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982); see also D & J Windows v. Sweitzer, 420 So.2d 363 (Fla. 1st DCA 1982); Dade American Hospital Supply v. Perez, 417 So.2d 296 (Fla. 1st DCA 1982); Acosta Roofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).
AFFIRMED. Appellee's motion for an appellate attorney's fee is DENIED. § 440.34, Fla.Stat. (1979).
1 Conshor stated that...
To continue reading
Request your trial
-
Timmeny v. Tropical Botanicals Corp.
...an issue such as this by motion for rehearing, so long as no further fact-finding is required. See, e.g., Chain Store Warehouses v. Picard, 431 So.2d 685 (Fla. 1st DCA 1983) (E/C failed to challenge the sufficiency of the evidence regarding claimant's entitlement to WL benefits, and should ......
-
Edgewood Boys' Ranch Foundation v. Robinson, AW-459
...to affirm the award of the van as specified "for want of a significant contest on [this] issue below." Chain Store Warehouses v. Picard, 431 So.2d 685, 687 (Fla. 1st DCA 1983). Although we could well be persuaded that some of the items listed ("Chrome Grill, $46.00, for example) do not appe......
-
Tropicana Products, Inc. v. Andrews
...and litigate that issue below. Here, as in City of Hialeah v. Cascardo, 443 So.2d 448 (Fla. 1st DCA 1984) and Chain Store Warehouses v. Picard, 431 So.2d 685 (Fla. 1st DCA 1983), the issue of the sufficiency of the work search evidence has not been preserved for review. Accordingly, we modi......
-
Newham v. Union Correctional Institute, BF-169
...institutions providing care to the claimant, were not sufficiently presented and preserved for review below, Chain Store Warehouses v. Picard, 431 So.2d 685 (Fla. 1st DCA 1983), nor raised within the thirty (30) day period following entry of the deputy's order. Acosta Roofing Co. v. Gillyar......