Delchamps v. Page
| Decision Date | 11 April 1995 |
| Docket Number | No. 93-3578,93-3578 |
| Citation | 659 So.2d 341 |
| Parties | 20 Fla. L. Weekly D941 DELCHAMPS and General Adjustment Bureau, Appellants/Cross-Appellees, v. Kimberly D. PAGE, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Stephen T. Holman of Bridgers, Gill & Holman, Pensacola, for appellants.
John P. Moneyham of John P. Moneyham, P.A., Panama City, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for appellee.
This appeal and cross-appeal arise from an order entered by the Judge of Compensation Claims (JCC) granting certain workers' compensation benefits to the claimant, Kimberly D. Page. The employer/carrier has raised three issues on appeal. Because competent substantial evidence supports the JCC's findings and conclusion that the claimant's condition was causally related to her 1991 industrial accident, we affirm on all three issues without discussion.
On cross-appeal, the claimant raises two issues, both of which merit discussion: (1) whether the JCC erred in denying temporary total disability (TTD) and/or temporary partial disability (TPD) benefits for the period of October 20, 1992, through December 7, 1992; and (2) whether the JCC erred in applying the deemed earnings provision of section 440.15, Florida Statutes, against the claimant's entitlement to TPD benefits after January 31, 1993.
As to the first issue, the JCC failed to make any findings concerning the request for TTD or TPD benefits for October 20 through December 7. The record appears to support the claimant's entitlement to such benefits; indeed, she received TTD benefits for the period of December 7, 1992, through January 31, 1993. Nevertheless, because the JCC made no findings regarding her entitlement to benefits for the period in question, we must remand.
The second issue raised on cross-appeal involves the application of the deemed earnings provision of section 440.15(4)(b), Florida Statutes, to the claimant's entitlement to TPD benefits after January 31, 1993, and until July 15, 1993, the date of the hearing. The JCC determined that the claimant met her initial burden of showing a causal relationship and specifically found that she was entitled to temporary partial compensation from February 1, 1993, through July 15, 1993, the date of the hearing. The JCC then applied the deemed earnings provision of section 440.15(4)(b) as an offset against her entitlement to benefits because no medical verification existed as to total disability after January 31, 1993, and the claimant's failure to work 20 hours per week constituted voluntary limitation of income. Because the E/C failed to satisfy its burden of proof on this issue, we reverse the JCC's application of the deemed earnings provision.
The statute provides that if an employee voluntarily limits his income, fails to accept employment commensurate with his abilities, or is terminated from employment because of his own misconduct, then:
[I]t shall be presumed, in the absence of substantial evidence to the contrary, that the salary, wages, and other remuneration that the employee was able to earn for such period ... is the amount which would have been earned if the employee had not limited his income or failed to accept appropriate employment or had not been terminated from employment due to his own misconduct."
Sec. 440.15(4)(b), Fla.Stat. (1991). According to the case law construing this provision, once a claimant has satisfied the initial burden of demonstrating a causal connection between the compensable injury and the subsequent loss of income, the burden shifts to the E/C to prove the claimant refused to work or voluntarily limited her income. Albertson's, Inc. v. Natale, 555 So.2d 946, 949 (Fla. 1st DCA 1990); see Church's Fried Chicken v. Maloney, 599 So.2d 706, 710 (Fla. 1st DCA 1992) (...
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Sales v. Toscano, 1D09-5138.
...deemed earnings are affirmative defenses, neither is an element of a prima facie claim for TPD benefits. See, e.g., Delchamps v. Page, 659 So.2d 341, 343 (Fla. 1st DCA 1995) (holding, once a claimant has satisfied the initial burden of demonstrating a causal connection between the compensab......
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Turner v. Miami-Dade County School Bd.
...fact supporting his conclusion. See, e.g., Mitchell v. S. Fla. Baptist Hosp., 805 So.2d 80, 82 (Fla. 1st DCA 2002); Delchamps v. Page, 659 So.2d 341, 342 (Fla. 1st DCA 1995); King Motor Co. v. Pollack, 409 So.2d 160, 166 (Fla. 1st DCA With regard to the issue of claimant's entitlement to pe......
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Fardella v. Genesis Health, Inc., 1D05-0376.
...that the JCC erroneously relied on case law that had construed the statute as it existed before its amendment, i.e., Delchamps v. Page, 659 So.2d 341 (Fla. 1st DCA 1995), and South Florida Water Management District v. Ciacci, 647 So.2d 203 (Fla. 1st DCA 1994), nonetheless, the JCC's denial ......
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Donahue v. CTL Distribution, 95-2314
...he was replaced with another individual who could perform the job. Thus, the E/C failed to satisfy its burden. See Delchamps v. Page, 659 So.2d 341, 343 (Fla. 1st DCA 1995) (E/C must show that at least one job opening existed within the employee's physical limitations); Hyatt Regency Westsh......