City of Clermont v. Rumph

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

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.


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 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 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 present evidence that his refusal for employment was not due to unavailability of jobs resulting from economic conditions....

Employer/carrier argue that the 1983 amendment has effectively overruled Regency Inn, and precludes an award of wage loss benefits unless a claimant establishes that economic conditions do not affect his employability. In Regency Inn the employer/carrier suggested a similar construction of § 440.15(3)(b), as then enacted. In rejecting this argument the en banc court noted that:

... the employer/carrier's view is fundamentally flawed by its failure to take into account the aspect of 'certainty' of recovery which is said to contribute to the constitutional validity of the workers' compensation system. Acton v. Ft. Lauderdale Hospital, 418 So.2d 1099 (Fla. 1st DCA 1982)....

The court further observed that such an approach would have the effect of withholding wage loss benefits in times of economic depression, thereby

... depriving those workers' compensation claimants of a remedy for work-related injuries, and seriously affecting, in our judgment, the rational balancing of the rights and interests of both employers and employees which is necessary to give validity to the wage loss concept. Acton v. Ft. Lauderdale Hospital ....

As Regency Inn thus indicates, in the present case employer/carrier's suggested construction of the 1983 amendment to § 440.15(3)(b) would seriously imperil the constitutional validity of the workers' compensation law. We are obliged to construe statutory pronouncements in such a manner as to effectuate their constitutionality. See Miami Dolphins Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981). We are also obliged to adopt the statutory construction which is most favorable to the employee. See Kerce v. Coca-Cola--Foods Division, 389 So.2d 1177 (Fla.1980). We therefore decline to adopt employer/carrier's suggested construction of the 1983 amendment to § 440.15(3)(b)2. We construe the amendment, instead, as precluding an award of wage loss benefits when predicated solely on economic considerations unrelated to a claimant's physical limitations by ordinary proximate cause standards. We further read the amendment as emphasizing the requirement that claimant shall present evidence indicating that the compensable physical limitation is a contributing causative factor in the wage loss claimed.

Claimant's initial burden under the amended language, therefore, is to present evidence, by job search when appropriate, which reasonably permits a conclusion that the compensable physical limitation was an element in the causal chain resulting in or contributing to the wage loss. The statute does not impose (and we do not consider the effect of such an attempt) any burden on claimant to show that the compensable impairment was the sole cause of wage loss, and we find no merit in appellant's argument that "it was incumbent on the claimant to produce live (sic) testimony to the effect that he was not hired as a result of his...

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