Chain Store Warehouses v. Picard, AN-209

CourtCourt of Appeal of Florida (US)
Citation431 So.2d 685
Docket NumberNo. AN-209,AN-209
PartiesCHAIN STORE WAREHOUSES and Aetna Insurance Co., Appellants, v. Edward PICARD, Appellee.
Decision Date06 May 1983

Page 685

431 So.2d 685
CHAIN STORE WAREHOUSES and Aetna Insurance Co., Appellants,
Edward PICARD, Appellee.
No. AN-209.
District Court of Appeal of Florida,
First District.
May 6, 1983.
Rehearing Denied June 7, 1983.

Page 686

Susan J. Silverman, of Marlow, Shofi, Ortmayer, Smith, Connel & Valerius, Miami, for appellants.

Alfred Kreisler, Miami, for appellee.

ROBERT P. SMITH, Jr., Chief Judge.

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

Page 687

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...

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9 cases
  • Timmeny v. Tropical Botanicals Corp., 91-3723
    • United States
    • Court of Appeal of Florida (US)
    • March 16, 1993 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
    • United States
    • Court of Appeal of Florida (US)
    • June 13, 1984 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
    • United States
    • Court of Appeal of Florida (US)
    • December 20, 1984
    ...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
    • United States
    • Court of Appeal of Florida (US)
    • February 18, 1986
    ...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......
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