City of Clermont v. Rumph, No. AU-438

CourtFlorida District Court of Appeals
Writing for the CourtWENTWORTH
Citation450 So.2d 573
Docket NumberNo. AU-438
Decision Date11 May 1984
PartiesCITY OF CLERMONT and Aetna Insurance Company, Appellants, v. William RUMPH, Appellee.

Page 573

450 So.2d 573
CITY OF CLERMONT and Aetna Insurance Company, Appellants,
v.
William RUMPH, Appellee.
No. AU-438.
District Court of Appeal of Florida,
First District.
May 11, 1984.
Rehearing Denied June 13, 1984.

Page 574

James M. Hess, of Driscoll, Langston & Kane, Orlando, for appellants.

Joseph E. Smith, of Hurt & Parrish, Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.

WENTWORTH, Judge.

Employer/carrier appeal a workers' compensation order and assert that a 1983 amendment to § 440.15(3)(b)2, Florida Statutes, precludes an award of wage loss benefits in this case. We affirm the order appealed.

Claimant is a 35 year old laborer who has worked as a garbage man and fruit picker, and who sustained an industrial accident in 1981 when his hand was caught in tractor machinery. The accident produced injury

Page 575

to two fingers, and the appeal does not question the existence of a resulting permanent impairment, required by the statute as a predicate for wage loss benefits, upon the attainment of maximum medical improvement in 1982. Claimant attempted to return to his former employment but was advised that his position had been filled and that no other job was available. He then made an unsuccessful job search for several months and sought wage loss benefits, which were controverted. After a hearing on the issue the deputy commissioner awarded benefits, and the order was affirmed on appeal. Claimant made a continuing job search, personally contacting a minimum of ten prospective employers each month. 1 In each instance he filled out a job application, and when requested admitted that he had sustained an industrial injury. Claimant testified that while he was not explicitly told by prospective employers why he was not hired, "once they found out about the injury" they would not employ him.

Despite his efforts claimant's job search was unsuccessful, and he therefore again requested wage loss benefits. Employer/carrier took the position at the hearing on July 25, 1983, that such benefits are precluded in this case by a 1983 amendment to § 440.15(3)(b)2, Florida Statutes. The deputy commissioner expressly rejected this defense and awarded the requested wage loss benefits for the months of January through June 1983. 2

As enacted in 1979, § 440.15(3)(b)2 provided that "the burden shall be on the employee to establish that any wage-loss claimed is the result of the compensable injury." In 1983 the legislature amended this provision to further provide that:

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.

Claimant asserts that this 1983 amendment so affects his substantive rights as to be inapplicable in the present case since his accident and injury preceded the amendment's effective date. While the substantive rights of the parties in a workers' compensation case are determined by the law in effect at the time of the claimant's injury, this rule does not apply to procedural enactments. See Sullivan v. Mayo, 121 So.2d 424 (Fla.1960). In the present case we find the contested amendment to be a procedural burden-of-proof enactment, and the provision's applicability is therefore not governed by the date of claimant's accident and injury. 3

To whatever extent the 1983 amendment applies in this case, 4 we conclude that claimant has satisfied the evidentiary burden which the amendment imposes. The contested provision was enacted at the next legislative session after this court's en banc decision in Regency Inn v.

Page 576

Johnson, 422 So.2d 870 (Fla. 1st DCA 1982), 5 which expressly held that:

... the unavailability of jobs due to economic conditions does not preclude recovery of wage loss benefits, and, accordingly, it is not necessary for a wage loss claimant to...

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57 practice notes
  • Nickolls v. University of Florida, No. 90-72
    • United States
    • Court of Appeal of Florida (US)
    • September 4, 1992
    ...563 So.2d 162, 164 (Fla. 1st DCA 1990); Edwards v. Caulfield, 560 So.2d 364, 374-75 (Fla. 1st DCA 1990); City of Clermont v. Rumph, 450 So.2d 573, 576 (Fla. 1st DCA), review denied, 458 So.2d 271 The type of evidence a claimant in a particular case must present in order to satisfy his or he......
  • Fuller v. State, Case No. 5D16-2646
    • United States
    • Court of Appeal of Florida (US)
    • September 28, 2018
    ...procedural rather than substantive, and was therefore to be applied retroactively. Id. at 464–66 ; see also City of Clermont v. Rumph , 450 So.2d 573, 575 (Fla 1st DCA 1984) (finding change in employee's burden of proof to be procedural and subject to retroactive application).Second, the re......
  • Cuccarollo v. Gulf Coast Bldg. Contractors, No. BK-88
    • United States
    • Court of Appeal of Florida (US)
    • October 14, 1986
    ...voluntary limitation of income. See, e.g., Tampa Electric Co. v. Bradshaw, 477 So.2d 624 (Fla. 1st DCA 1985); City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984); D.L. Amici Co. v. Jackson, 444 So.2d 978 (Fla. 1st DCA 1983), rev. denied, 451 So.2d 848 (Fla.1984); D & R Builders, In......
  • Vencor Hosp. v. Ahles, No. 98-1030.
    • United States
    • Court of Appeal of Florida (US)
    • December 11, 1998
    ...in or contributing to the wage loss." STC/Documation v. Burns, 521 So.2d 197, 198 (Fla. 1st DCA 1988). Quoting City of Clermont v. Rumph, 450 So.2d 573, 576 (Fla. 1st DCA 1984). Since wage loss involves a periodic inquiry, claimant's failure to make the required showing for one period does ......
  • Request a trial to view additional results
57 cases
  • Nickolls v. University of Florida, No. 90-72
    • United States
    • Court of Appeal of Florida (US)
    • September 4, 1992
    ...563 So.2d 162, 164 (Fla. 1st DCA 1990); Edwards v. Caulfield, 560 So.2d 364, 374-75 (Fla. 1st DCA 1990); City of Clermont v. Rumph, 450 So.2d 573, 576 (Fla. 1st DCA), review denied, 458 So.2d 271 The type of evidence a claimant in a particular case must present in order to satisfy his or he......
  • Fuller v. State, Case No. 5D16-2646
    • United States
    • Court of Appeal of Florida (US)
    • September 28, 2018
    ...procedural rather than substantive, and was therefore to be applied retroactively. Id. at 464–66 ; see also City of Clermont v. Rumph , 450 So.2d 573, 575 (Fla 1st DCA 1984) (finding change in employee's burden of proof to be procedural and subject to retroactive application).Second, the re......
  • Cuccarollo v. Gulf Coast Bldg. Contractors, No. BK-88
    • United States
    • Court of Appeal of Florida (US)
    • October 14, 1986
    ...voluntary limitation of income. See, e.g., Tampa Electric Co. v. Bradshaw, 477 So.2d 624 (Fla. 1st DCA 1985); City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984); D.L. Amici Co. v. Jackson, 444 So.2d 978 (Fla. 1st DCA 1983), rev. denied, 451 So.2d 848 (Fla.1984); D & R Builders, In......
  • Vencor Hosp. v. Ahles, No. 98-1030.
    • United States
    • Court of Appeal of Florida (US)
    • December 11, 1998
    ...in or contributing to the wage loss." STC/Documation v. Burns, 521 So.2d 197, 198 (Fla. 1st DCA 1988). Quoting City of Clermont v. Rumph, 450 So.2d 573, 576 (Fla. 1st DCA 1984). Since wage loss involves a periodic inquiry, claimant's failure to make the required showing for one period does ......
  • Request a trial to view additional results

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