D.L. Amici Co. v. Jackson, AQ-362

• Decision Date: 29 December 1983
• Docket Number: No. AQ-362,AQ-362
• Citation: 444 So.2d 978
• Parties: D.L. AMICI COMPANY and American Mutual Insurance Company, Appellants, v. James JACKSON, Appellee.
• Court: Florida District Court of Appeals

Page 978

444 So.2d 978

D.L. AMICI COMPANY and American Mutual Insurance Company, Appellants, v. James JACKSON, Appellee.

No. AQ-362.

District Court of Appeal of Florida,

First District.

Dec. 29, 1983.

Rehearing Denied Feb. 13, 1984.

Stephen E. Tunstall of Underwood, Gillis, Karcher & Valle, Miami, for appellants.

Richard A. Sadow of Sadow, Lynne & Gonzales, North Miami, for appellee.

THOMPSON, Judge.

The employer/carrier (E/C) appeal a compensation order contending that the deputy commissioner (deputy) erred in awarding wage loss benefits from January 28, 1982 to May 1, 1982 because claimant was laid off on January 27, 1982 as a result of economic conditions, not as the result of physical limitations related to his accident. We reverse.

The distal phalanx of claimant's right fifth finger was amputated in a compensable accident on September 3, 1981 while claimant was laying water pipe. Dr. Nadler, an orthopedist, first saw claimant on September 3, 1981 at the hospital and performed the primary repair. The severed tip of claimant's finger was not sutured back onto his finger. Claimant remained in the hospital for several days for intravenous antibiotics and observation. On September 25, 1981 Dr. Nadler recommended to the claimant that he return to light duty work. When he saw claimant on October 23, 1981 for a final examination, he determined that claimant had reached maximum medical improvement (MMI) on that date, and released him to return to his regular work without restrictions. Dr. Nadler gave claimant a three percent permanent impairment rating.

Claimant returned to work with the employer on October 10, 1981 at the same rate of pay he was making prior to the accident and worked until January 27, 1982, when he was laid off because of the employer's shortage of work. Claimant subsequently filed a claim for wage loss benefits from January 28, 1982 to the date of the claim and continuing. The E/C controverted the claim for wage loss benefits on the grounds that claimant's unemployment was due to economic reasons rather than to his injury from the industrial accident. At the hearing claimant testified he made a job search from the time of his discharge until May 1982. However, he did not look for any jobs after May because he felt he had a good chance of obtaining a job with the post office where he had an application pending. The employer's payroll supervisor testified that claimant, along with two others, was discharged in January 1982 because a stoppage of the kind of work claimant was doing necessitated that three people be discharged. The payroll supervisor further testified that they were pleased with claimant's performance after he returned to work in October 1981, following the accident, and that he was not discharged because of his injury. The deputy found that the claimant had made a good faith attempt to secure employment and had conducted a good faith job search from January 28, 1982 through May 1, 1982 and awarded wage loss benefits for that period of time. He further found that the claimant had not made an adequate and good faith attempt to secure employment subsequent to May 1, 1982, and denied wage loss benefits subsequent to May 1, 1982 until claimant again met his burden of conducting a good faith job search. With regard to the claim for wage loss benefits, the deputy specifically found "that the Claimant worked for the Employer herein, although in pain and discomfort on manhole covers rather than on pipe fitting until he was layed [sic] off due to economic reasons." (emphasis added).

The E/C, relying on Citrus Central v. Parker, 423 So.2d 610 (Fla. 1st DCA 1982) and Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982), pet. for rev. den., 431 So.2d 989 (Fla.1983) contend that an injured claimant who receives a disability rating and returns to the same job making the same money after the accident and who is subsequently laid off for economic reasons, is not entitled to wage loss benefits. Citrus Central and this case are almost factually indistinguishable. In each case after reaching MMI, the claimant returned to work for the employer by whom he had been employed at the time of the accident at the same or a greater wage until being discharged for economic reasons. Citrus Central found there was no evidence to support the finding that claimant's layoff had any causal connection to his prior injury or subsequent partial disability and limitations. Accordingly, the award of wage loss benefits was reversed. In this case there is no evidence in the record to support a finding that claimant's layoff was a result of anything other than economic or business conditions or that it was in any way related to his injury. Since there is no causal connection between the claimant's discharge and his injury, the award of wage loss benefits must be reversed.

Claimant contends that although the E/C rely on Regency Inn, they did not quote the following language from Regency Inn:

We hold 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.

422 So.2d at 879.

Regency Inn interpreted § 440.15(3)(b)2., Fla.Stat. (1979), which specifically places the burden "on the employee to establish that any wage loss claimed is the result of the compensable injury," as requiring the employee to go forward with evidence that a change in his employment status was due to the injury and that he had made an adequate good faith attempt to secure employment commensurate with his ability. Once the employee presents such evidence, the employer has...