Cuccarollo v. Gulf Coast Bldg. Contractors, No. BK-88

CourtCourt of Appeal of Florida (US)
Writing for the CourtTHOMPSON; SHIVERS; ERVIN; ERVIN; SHIVERS; ERVIN; ERVIN
Citation500 So.2d 547,11 Fla. L. Weekly 2158
Decision Date14 October 1986
Docket NumberNo. BK-88
Parties11 Fla. L. Weekly 2158, 12 Fla. L. Weekly 283 John CUCCAROLLO, Appellant, v. GULF COAST BUILDING CONTRACTORS and U.S.F. & G., Appellees.

Page 547

500 So.2d 547
11 Fla. L. Weekly 2158, 12 Fla. L. Weekly 283
John CUCCAROLLO, Appellant,
v.
GULF COAST BUILDING CONTRACTORS and U.S.F. & G., Appellees.
No. BK-88.
District Court of Appeal of Florida,
First District.
Oct. 14, 1986.
On Rehearing Jan. 20, 1987.

John L. Myrick, Pensacola, for appellant.

James N. McConnaughhay and David A. McCranie of Karl, McConnaughhay, Roland, Maida & Beal, Tallahassee, for appellees.

THOMPSON, Judge.

Claimant appeals a compensation order denying wage-loss benefits. We affirm.

This is another case where the sole question involved is whether there is competent substantial evidence to support the ruling of the deputy commissioner (deputy). As this court pointed out in Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983): "We do not review whether there was competent, substantial evidence to support the claim disallowed by the deputy; we only review whether the record contains competent, substantial evidence to support the deputy's order." (Emphasis by the court.) In the instant case not some but all of the competent substantial evidence, including that offered by the claimant, supports the deputy's ruling.

In his ruling the deputy correctly distinguishes the cases relied upon in the

Page 548

dissent because the injuries to those claimants were contributing factors in the wage-loss claims. National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1984); National Distillers v. Guthrie, 473 So.2d 806 (Fla. 1st DCA 1985), and Carpenters R.V. Service v. Eckert, 455 So.2d 590 (Fla. 1st DCA 1984) all involved an order of the deputy finding that the claimant's compensable physical limitation was a contributing causative factor in the wage-loss claimed. There was competent substantial evidence to support the deputy's rulings in these cases. In the instant case the evidence showed, and the deputy found, that the claimant's wage-loss was due solely to the lack of tourists during the winter season, an economic factor in no way causally connected to the claimant's injury. The claimant admitted on cross examination that the lack of winter tourists was the sole cause of his wage-loss. The deputy's finding of no causal connection between the claimant's wage-loss and his compensable injury is fully supported by competent substantial evidence, including the testimony of the claimant.

The deputy did not specifically rule on the question whether the claimant had any permanent impairment, but such a ruling is unnecessary in view of the determination that there was no causal connection between claimant's compensable accident and the wage-loss sustained. Regardless of whether claimant sustained a permanent impairment, no wage-loss would be due if it were not causally connected to the claimant's compensable injury. The deputy did state in his order that he had advised the parties that it would be necessary to redepose Dr. Cameron on the issue of permanent impairment in accordance with the AMA Guides, and that the claimant's attorney had declined to redepose Dr. Cameron. The deputy further found that, although Dr. Cameron determined claimant had reached maximum medical improvement with a five percent permanent partial impairment of the body as a whole, such impairment was based on subjective complaints and it was doubtful that the claimant had met the threshold requirements to establish permanent impairment under § 440.15(3)(b)1, Fla.Stat. These findings are supported by competent substantial evidence. Indeed, Dr. Cameron testified that while he did not agree with the AMA Guides, the type of injury sustained by the claimant was covered by the AMA Guides and claimant's permanent impairment rating under the AMA Guides would be zero. The burden of proving permanent impairment was on the claimant. He failed to carry his burden even after the deputy had suggested that his proof was insufficient and had given him an opportunity to adduce additional evidence on the question.

The law and evidence support the deputy's order, and it is AFFIRMED.

SHIVERS, J., concurs.

ERVIN, J., dissents.

ERVIN, Judge, dissenting.

I dissent. The 33-year-old claimant, while employed as a carpenter, suffered a compensable injury in February 1981. Following claimant's successful treatment at a pain clinic, his authorized physician recommended that he be discharged as "maximally improved" with a five-percent permanent impairment as of October 23, 1981. Claimant thereafter undertook efforts at rehabilitation, and the employer/carrier (e/c) voluntarily paid rehabilitative benefits, including tuition and all expenses for a year's study at the commercial art department at Pensacola Junior College. During the summer of 1983, after completing his studies, claimant acquired work painting t-shirts and other merchandise on Pensacola Beach. This work was seasonal, with the peak periods of activity ending in fall. Claimant later unsuccessfully attempted to find regular full-time work as an artist for commercial art businesses in Pensacola.

Because claimant's average weekly wage (AWW) during the fall and winter months following his accident was far less than the winter and spring months, he sought wage-loss for the former periods of time, specifically for the months of October-December

Page 549

1984, and January-March 1985. The e/c controverted on the grounds, among others, that claimant had refused the e/c's offer of regular jobs which it had found for him, had refused to accept any type of work other than in commercial art, and that claimant was not eligible for wage loss benefits since he had no permanent impairment under the AMA Guides.

The deputy, without addressing the question of whether the claimant had met the threshold requirement of establishing permanent impairment 1 pursuant to Section 440.15(3)(b)1, Florida Statutes, denied the claim on the ground that the claimant had failed to prove any connection between his injury and his reduced income during the winter months. Clearly the deputy's refusal to decide the initial issue of whether claimant had sustained permanent impairment was error. Neither party argues that such issue was not ripe for determination. The case, then, should be remanded to the deputy to make this essential finding, cf. Florida Power & Light Co. v. Mulkerrin, 444 So.2d 583 (Fla. 1st DCA 1984)--unless, of course, the error can be deemed only harmless in light of the deputy's explicit ruling on the issue now on review.

The deputy's determination that no causal connection existed between the wage-loss suffered and claimant's industrial accident was based upon his finding that claimant's depressed income during the off-season months of the year was attributable solely to economic factors and not to the injury. In so holding, the deputy's order overlooks a myriad number of cases from this court stating that if an employee is displaced from his employment due to a work-related injury and has instituted a good faith effort to find work within his capabilities, the burden then shifts to the employer to establish claimant's 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, Inc. v. Quetglas, 449 So.2d 988 (Fla. 1st DCA 1984); Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982).

More specifically, as applied to the facts at bar, the deputy erroneously refused to apply National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1983) (Guthrie I); National Distillers v. Guthrie, 473 So.2d 806 (Fla. 1st DCA 1985) (Guthrie II), and Carpenters R.V. Service v. Eckert, 455 So.2d 590 (Fla. 1st DCA 1984) to the issue on review, it being his...

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3 practice notes
  • Lawrence v. O.B. Cannon & Sons, Inc., No. 90-1154
    • United States
    • Court of Appeal of Florida (US)
    • 9 d4 Maio d4 1991
    ...rather, the court is bound to affirm his decision when, as here, it has a record basis. See Cuccarollo v. Gulf Coast Bldg. Contractors, 500 So.2d 547 (Fla. 1st DCA 1986), quoting, Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983). The claimant's final contention that a remand is n......
  • Thompson v. City of Jacksonville, No. 92-3783
    • United States
    • Court of Appeal of Florida (US)
    • 4 d3 Janeiro d3 1995
    ...real, the discrepancy lacks significance in light of the judge's finding of no causation. See Cuccarollo v. Gulf Coast Bldg. Contractors, 500 So.2d 547, 548 (Fla. 1st DCA 1986) (ruling on a permanent impairment rating "is unnecessary in view of the determination that there was no causal con......
  • WPOM Partners v. Lovell, No. 91-3336
    • United States
    • Court of Appeal of Florida (US)
    • 30 d1 Agosto d1 1993
    ...attributable to economic conditions, and for this reason, among others, the decision in Cuccarollo v. Gulf Coast Building Contractors, 500 So.2d 547 (Fla. 1st DCA 1986), is distinguishable from this Page 804 The parties agreed that determination of the amounts of wage loss benefits payable ......
3 cases
  • Lawrence v. O.B. Cannon & Sons, Inc., No. 90-1154
    • United States
    • Court of Appeal of Florida (US)
    • 9 d4 Maio d4 1991
    ...rather, the court is bound to affirm his decision when, as here, it has a record basis. See Cuccarollo v. Gulf Coast Bldg. Contractors, 500 So.2d 547 (Fla. 1st DCA 1986), quoting, Swanigan v. Dobbs House, 442 So.2d 1026 (Fla. 1st DCA 1983). The claimant's final contention that a remand is n......
  • Thompson v. City of Jacksonville, No. 92-3783
    • United States
    • Court of Appeal of Florida (US)
    • 4 d3 Janeiro d3 1995
    ...real, the discrepancy lacks significance in light of the judge's finding of no causation. See Cuccarollo v. Gulf Coast Bldg. Contractors, 500 So.2d 547, 548 (Fla. 1st DCA 1986) (ruling on a permanent impairment rating "is unnecessary in view of the determination that there was no causal con......
  • WPOM Partners v. Lovell, No. 91-3336
    • United States
    • Court of Appeal of Florida (US)
    • 30 d1 Agosto d1 1993
    ...attributable to economic conditions, and for this reason, among others, the decision in Cuccarollo v. Gulf Coast Building Contractors, 500 So.2d 547 (Fla. 1st DCA 1986), is distinguishable from this Page 804 The parties agreed that determination of the amounts of wage loss benefits payable ......

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