Donahue v. CTL Distribution, 95-2314

• Decision Date: 19 November 1996
• Docket Number: No. 95-2314,95-2314
• Citation: 682 So.2d 1218
• Parties: 21 Fla. L. Weekly D2490 Robert DONAHUE, Appellant, v. CTL DISTRIBUTION and Comcar Industries, Appellees.
• Court: Florida District Court of Appeals

Page 1218

682 So.2d 1218

21 Fla. L. Weekly D2490

Robert DONAHUE, Appellant, v. CTL DISTRIBUTION and Comcar Industries, Appellees.

No. 95-2314.

District Court of Appeal of Florida,

First District.

Nov. 19, 1996.

An appeal from an order of Judge of Compensation Claims; William D. Douglas, Judge.

Matthew D. Valdes of the law offices of Richard R. Roach, Lakeland; Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.

Bernard J. Zimmerman and Kevin G. Malchow of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for Appellees.

PER CURIAM.

At issue in this workers' compensation case is appellant's entitlement to wage-loss benefits during certain periods before and after termination of his employment with appellee CTL Distribution. We affirm that portion of the order on appeal awarding wage-loss based upon deemed earnings from August 28, 1994, to October 31, 1994, because that award is supported by competent substantial evidence. The employer concedes, however, that deemed earnings may not be properly applied to wage-loss for periods of time after October 31, 1994. Accordingly, the allowance of deemed earnings for those periods after October 31, 1994, is reversed and the case is remanded for further proceedings.

KAHN, J., and SMITH, Senior Judge, concur.

ERVIN, J., concurs and dissents with written opinion.

ERVIN, Judge, concurring and dissenting.

Although I concur in most of the majority's decision, I write to express my disagreement with that portion affirming the application of deemed earnings for the period from September 30, 1994, through October 31, 1994. I would reverse the application of deemed earnings for that one-month period, because the employer and its insurance carrier (collectively, the E/C) failed to satisfy their burden in regard to the application of the deemed earnings provision.

The evidence was undisputed that Donahue could not return to his former employment as a truck driver because of his compensable injuries. Because Donahue satisfied his burden of showing that his compensable physical limitation was a causative factor of his wage loss, the burden shifted to the E/C to show the contrary. Tampa Elec. Co. v. Bradshaw, 477 So.2d 624, 629 (Fla. 1st DCA 1985).

The only evidence the E/C offered to satisfy its burden was that Donahue refused to perform a full-time job offered him in the parts room. Nevertheless, the record demonstrates, and the E/C concedes, that the job was no longer available after Donahue's termination on September 30, 1994, because he was replaced with...