Flesche v. Interstate Warehouse, AD-327

• Decision Date: 15 March 1982
• Docket Number: No. AD-327,AD-327
• Citation: 411 So.2d 919
• Court: Florida District Court of Appeals
• Parties: Charles FLESCHE, Appellant, v. INTERSTATE WAREHOUSE and U. S. Fidelity & Guaranty Company, Appellees.

Page 919

411 So.2d 919

Charles FLESCHE, Appellant, v. INTERSTATE WAREHOUSE and U. S. Fidelity & Guaranty Company, Appellees.

No. AD-327.

District Court of Appeal of Florida, First District.

March 15, 1982.

Rehearing Denied April 16, 1982.

Richard A. Barnett, Hollywood, for appellant.

Anthony J. Beisler, III, Fort Lauderdale, for appellees.

LARRY G. SMITH, Judge.

Claimant appeals a worker's compensation order denying his petition for modification based on a change in his wage earning capacity.

The deputy commissioner had previously denied a claim for wage earning capacity loss because of the inadequacy of claimant's work search evidence. After receiving additional evidence of claimant's unsuccessful work search at the modification hearing, the deputy denied the modification, ruling that the evidence of claimant's unsuccessful job search, which he conducted subsequent to the original hearing, should have been presented by the claimant at the original hearing, and the issue was therefore res judicata. Further, the deputy ruled, the claimant's work search subsequent to the original order was not a proper predicate for a change of condition as contemplated by the modification statute, Section 440.28, Florida Statutes. We must respectfully disagree with these rulings by the deputy commissioner, who was compelled to render his decision on questions some of which, apparently, have not heretofore been clearly addressed by an appellate tribunal in Florida workers' compensation litigation. We therefore reverse.

The facts, briefly, show that the 57-year old claimant was injured in 1975 while employed as manager for a warehouse storage rental complex, suffering injuries to his back for which he underwent surgery. He received temporary total disability benefits until October 3, 1979, at which time permanent partial benefits were commenced based upon a 35% body as a whole disability rating, voluntarily accepted by the employer/carrier. He then filed a claim seeking permanent total disability, or in the alternative, a disability rating based on wage earning capacity loss in excess of the 35% anatomical rating. These claims were denied after a hearing on January 30, 1980. ¹ Claimant conducted a work search from March 19, 1980 to May 8, 1980, contacting some twenty-four prospective employers without success. ² He then filed his petition for modification, and presented his work search evidence at a hearing on April 27, 1981. Following this hearing, the order appealed was entered.

There can be little doubt that a modification based upon a change in earning capacity is contemplated by the statutes. Section 440.28, Florida Statutes. This was made clear by the Florida Industrial Commission in DuPont Plaza Hotel v. Schiffman, IRC Order 2-2326 (1973), cert. denied, 291 So.2d 5 (Fla.1974), overruling the Commission's decision in Gomez v. Panelfab Products, Inc., 6 FCR 409 (1971), which had declared that a change in condition pursuant to Section 440.28 "refers only to physical condition and that wage earning capacity loss cannot be construed alone as grounds for modification." Larson's Workmen's Compensation Law, Volume III, § 81.31 (quoted in Dupont Plaza, supra), points out that "disability," has a medical as well as an economic component, and that "a change in claimant's ability to get or hold employment, or to maintain his earlier earnings level, should be considered a 'change in condition' even though claimant's physical condition may have remained unchanged." Cases from other jurisdictions have held that a modification based on a change in earning capacity may be ordered without any showing of a change in physical condition. Hunt v. Industrial Commission, 107 Ariz. 569, 490 P.2d 575 (1971); Levesque v. Shorey, 286 A.2d 606 (Me., 1972); Miller v. Argonaut Insurance Company, 136 Ga.App. 101, 220 S.E.2d 89 (1975). The distinction between medical or physical disability and wage earning capacity has been recognized in Florida, Maldonado v. Keller Metal Products, 185 So.2d 702 (Fla.1966), and as Commissioner Slepin so appropriately pointed out in Dupont Plaza, supra, it is not "disability" that is compensable, but the resulting loss of earning capacity.

The more critical aspect of this issue is whether a change in earning capacity may be predicated upon work search evidence accumulated subsequent to an initial denial of wage earning capacity loss, where the initial denial was based on an inadequate work search, or no work search. We answer the question in the affirmative. The ultimate issue is one of employability, and the so-called "work search" test is merely the evidentiary vehicle by which employability, or lack of it, is proven. ³ If the claimant's evidence fails to meet the job search requirements so as to "preclude" consideration ⁴ of a disability award based upon loss of wage earning capacity in excess of his anatomical disability, ⁵ then the assumption must be made that no such impediment to employment is present at that time. ⁶ If the evidence shows that the claimant is in fact unemployed, then the deputy may validly assume, absent evidence to the contrary, that this status will be remedied in the near future. However, we find no basis in logic or reason to prevent a claimant from proving, within the two year period allowed by this statute, Section 440.28, that although at the initial hearing he was justifiably presumed to have no claim based on loss of earning capacity, at a later time his earning capacity was nonexistent or impaired to a degree which would warrant an increase in his disability payments. We further reject, as contrary to the spirit and purpose of the worker's compensation law, the suggestion implicit in the employer/carrier's arguments here that even if claimant was in reality unable to secure employment within his capabilities at the time of the first hearing, he should be precluded from proving that he is unable to do so at the time of his modification hearing, because such proof does not establish a "change in condition." We find the language of Mr. Justice Ervin in Arnold v. Stroud, 221 So.2d 729 (Fla.1969), particularly appropriate in disposing of this point (Id. at 731):

... (T)he evidence presented in support of modification indicates the transpiration of events cogently indicative of the incapability of the prior determination with the real extent of Petitioner's disabilities. In these circumstances, to hold that Petitioner is not entitled to modification of the earlier determination so as to conform his compensation award to the existing realities of his disability would unduly thwart the liberal purposes sought to be accomplished by F.S. Section 440.28, F.S.A. (emphasis supplied).

We also dismiss any suggestion that a modification based on new job search evidence must be rejected under the rule prohibiting the use of "cumulative evidence" for such purposes. Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla.1963), the case cited by the deputy commissioner in support of his res judicata ruling, does state that it is the responsibility of the claimant to present his evidence to support his claim and, "as in any other proceeding, he is bound by it." The opinion also recites that "all known evidence" bearing on the claim should be submitted to the deputy, and that if the claimant "fails to produce evidence available to him or produces unreliable evidence," he cannot thereafter claim that the deputy committed error in relying upon it. ⁷ Id. at 165. A careful reading of the Sauder opinion, however, reveals that these comments of the court were directed to modification attempts based upon mistake of fact, not change in condition.

The Sauder opinion also contains the observation, in reference to modifications under Section 440.28 based upon mistake in a determination of a fact or change in condition (156 So.2d at 165):

As we said on several occasions, it is not sufficient to support a modification under either provision by merely producing cumulative evidence.

This statement, read in isolation, can be interpreted erroneously, as later indicated by the court in Soloff v. U-Totem, Inc. of Broward, 257 So.2d 31 (Fla.1971), in which the court reaffirmed Dixon v. Bruce Construction Corporation, 160 So.2d 116 (Fla.1963), for the proposition that the so-called "cumulative evidence" rule, while applicable to petitions for modification on mistake of fact, cannot be applied equally and indiscriminately where the petition is based upon a change in condition.

Thus, the deputy commissioner's and the E/C's reliance on the Sauder case appears to have been inappropriate. Furthermore, the E/C's reliance here upon Sonny Boy's Fruit Company v. Compton, 46 So.2d 17 (Fla.1950), is inapposite, for the same reasons given by the Dixon court for disregarding it in that case, namely, that the attempted modification in Sonny Boy's was based on alleged mistake of fact. Sonny Boy's upheld the Industrial Commission's reversal of a modification based on cumulative evidence showing merely a difference of opinion from that of the witnesses who testified at the first hearing, the court stating (46 So.2d at 18): "It developed nothing new nor did it show that something material had been overlooked by which the rights of the claimant were prejudiced." We interject here that an adequate work search conducted subsequent to an inadequate one, or none at all, can hardly be characterized as "nothing new;" and, while the evidence of a new job search could not have been earlier "overlooked," in the sense that something that has not yet occurred cannot be overlooked, such evidence is highly material, and we can think of few circumstances more devastating or prejudicial to the rights of a claimant than to have consideration of his loss of earning capacity claim at an earlier hearing "precluded" by a finding that his job search evidence was considered inadequate.

We have thus far here determined that a change in wage...