City of Miami v. Simpson, No. BK-23
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | ERVIN; SHIVERS; THOMPSON; THOMPSON |
| Citation | 11 Fla. L. Weekly 2227,496 So.2d 899 |
| Decision Date | 21 October 1986 |
| Docket Number | No. BK-23 |
| Parties | 11 Fla. L. Weekly 2227 CITY OF MIAMI, Appellant/Cross-Appellee, v. James SIMPSON, Appellee/Cross-Appellant. |
Page 899
v.
James SIMPSON, Appellee/Cross-Appellant.
First District.
Page 900
ERVIN, Judge.
Appellant/Cross-Appellee, City of Miami, appeals the award of wage loss benefits in this workers' compensation claim. Appellee/Cross-Appellant appeals the failure of the deputy commissioner (dc) to award statutory penalties. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Claimant was employed by the City of Miami as a fire fighter and paramedic beginning in 1972. In 1980, the claimant suffered a compensable back injury while working as a paramedic, and, on April 26, 1982, he voluntarily resigned from his position with the city. As recited in our earlier opinion involving the same parties, the resignation was unrelated to claimant's injury, but was instead motivated by the need to gain favorable recommendations from his supervisors to be presented to a federal court during sentencing, following his conviction for drug smuggling by airplane. City of Miami v. Simpson, 459 So.2d 326, 327 (Fla. 1st DCA 1984). Claimant reached maximum medical improvement (MMI) October 13, 1982. After his resignation, he enrolled in a rehabilitation program to be trained as a forester, and received a degree in forestry from the University of Northern Arizona in December 1984. Claimant accepted a job as a forester, which began on January 6, 1985.
Claimant was awarded temporary total disability benefits in connection with the rehabilitation program by order dated October 25, 1983, which were reversed by us in City of Miami v. Simpson. In reversing, we observed that the claimant had embarked upon a rehabilitation program "before informing the employer of any need for or interest in such a program." 459 So.2d at 327. Following our mandate, the claimant subsequently filed claims for wage loss benefits which were controverted by the employer. In a second order, dated October 28, 1985, the dc awarded wage loss benefits, from September 19, 1982 to July 31, 1985, on the ground that the findings of fact recited in the 1983 order, relating to wage-loss, were law of the case or res judicata, and controlled subsequent proceedings concerning wage-loss. 1
We agree with appellant that the dc erred in applying res judicata regarding the issue of wage-loss. Although the doctrine of res judicata is generally applicable to workers' compensation cases, Wellcraft Marine Corp. v. Turner, 435 So.2d 864 (Fla. 1st DCA 1983), it has no relevancy to the facts at bar. The only item concerning wage-loss in the decretal portion of the 1983 order, item 2, did not award specific benefits. 2 Since there was no wage loss award, the dc's discussion of wage-loss was non-final and non-appealable. See Mills Electrical Contractors v. Marthens, 417 So.2d 700 (Fla. 1st DCA 1982) pet. for review denied, 429 So.2d 6 (Fla.1983) (an order deciding the issue of compensability in favor of claimant but not awarding benefits); Sunny Pines Convalescent Center v. Walters, 422 So.2d 1079 (Fla. 1st DCA 1982) (reservation of jurisdiction to award attorney's fees). As "the doctrine [of res judicata] will not be applied where, in the prior action, there was not an unquestionable, clear-cut official adjudication[,]" 32 Fla.Jur. 2d Judgments and Decrees § 97 (1981), it has no bearing as to claimant's right to wage-loss in the instant case. Wellcraft, 435 So.2d at 865, observes that the statutory scheme governing wage-loss affords an e/c the right to contest succeeding wage loss claims on appropriate grounds, but holds that estoppel by judgment precludes an e/c from relitigating the issue of permanent impairment, unless it argues that a change in claimant's condition has occurred. Appellant has not objected to the dc's findings of permanent
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Nickolls v. University of Florida, 90-72
...696 (Fla. 1st DCA 1987); Rodriguez v. The Sheraton Bal Harbour Hotel, 509 So.2d 369, 371 (Fla. 1st DCA 1987); City of Miami v. Simpson, 496 So.2d 899 (Fla. 1st DCA 1986), review denied, 506 So.2d 1043 (Fla.1987). The claimant at bar, however, who was never informed by the E/C of his duty to......
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Waterman v. Interstate Truckers, Inc., 88-1792
...(2) obtaining and performing a full-time job. Coq v. Fuchs Baking Company, 507 So.2d 138 (Fla. 1st DCA 1987); City of Miami v. Simpson, 496 So.2d 899 (Fla. 1st DCA 1986), review denied, 506 So.2d 1043 (Fla.1987); Adart South Polybag Manufacturing, Inc. v. Goldberg, 495 So.2d 826 (Fla. 1st D......
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Parker v. Sugar Cane Growers Co-op, CO-OP and N
...a claimant's right to disability benefits. Mathis v. Lewis Bear Co., 511 So.2d 663, 664 (Fla. 1st DCA 1987); City of Miami v. Simpson, 496 So.2d 899, 901 (Fla. 1st DCA 1986), review denied, 506 So.2d 1043 (Fla.1987). From April 3, 1989 through the date of the hearing (May 29, 1989), claiman......
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Sparks v. Aluma Shield Industries, BR-299
...So.2d 1197, 1199 (Fla. 1st DCA 1984); Oxford Building Service v. Allen, 498 So.2d 523, 524 (Fla. 1st DCA 1986); City of Miami v. Simpson, 496 So.2d 899, 901 (Fla. 1st DCA 1986); Whalen v. U.S. Elevator, 486 So.2d 670, 671 (Fla. 1st DCA 1986). Because the record and the deputy commissioner's......
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Nickolls v. University of Florida, No. 90-72
...696 (Fla. 1st DCA 1987); Rodriguez v. The Sheraton Bal Harbour Hotel, 509 So.2d 369, 371 (Fla. 1st DCA 1987); City of Miami v. Simpson, 496 So.2d 899 (Fla. 1st DCA 1986), review denied, 506 So.2d 1043 (Fla.1987). The claimant at bar, however, who was never informed by the E/C of his duty to......
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Waterman v. Interstate Truckers, Inc., No. 88-1792
...(2) obtaining and performing a full-time job. Coq v. Fuchs Baking Company, 507 So.2d 138 (Fla. 1st DCA 1987); City of Miami v. Simpson, 496 So.2d 899 (Fla. 1st DCA 1986), review denied, 506 So.2d 1043 (Fla.1987); Adart South Polybag Manufacturing, Inc. v. Goldberg, 495 So.2d 826 (Fla. 1st D......
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Parker v. Sugar Cane Growers Co-op, CO-OP and N
...a claimant's right to disability benefits. Mathis v. Lewis Bear Co., 511 So.2d 663, 664 (Fla. 1st DCA 1987); City of Miami v. Simpson, 496 So.2d 899, 901 (Fla. 1st DCA 1986), review denied, 506 So.2d 1043 (Fla.1987). From April 3, 1989 through the date of the hearing (May 29, 1989), claiman......
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Sparks v. Aluma Shield Industries, No. BR-299
...So.2d 1197, 1199 (Fla. 1st DCA 1984); Oxford Building Service v. Allen, 498 So.2d 523, 524 (Fla. 1st DCA 1986); City of Miami v. Simpson, 496 So.2d 899, 901 (Fla. 1st DCA 1986); Whalen v. U.S. Elevator, 486 So.2d 670, 671 (Fla. 1st DCA 1986). Because the record and the deputy commissioner's......