Forming Contractors v. Barry, AG-35
| Court | Court of Appeal of Florida (US) |
| Writing for the Court | WIGGINTON |
| Citation | 413 So.2d 132 |
| Parties | FORMING CONTRACTORS and Old Republic Insurance Company, Appellants, v. Thomas BARRY, Appellee. |
| Docket Number | No. AG-35,AG-35 |
| Decision Date | 26 April 1982 |
Page 132
v.
Thomas BARRY, Appellee.
First District.
Charles Desmond Crowley, Fort Lauderdale, for appellants.
Dennis M. Usdan, of Nolan & Usdan, Fort Lauderdale, for appellee.
WIGGINTON, Judge.
In this workers' compensation appeal, the employer/carrier challenge the
Page 133
deputy commissioner's award of temporary total disability benefits to claimant and her determination of claimant's average weekly wage. We reverse as to the award of temporary total disability benefits. During the periods of time in question, the record reveals medical testimony as to claimant's ability to work. Claimant's subjective testimony as to his inability to work, and especially in light of the medical testimony to the contrary, is insufficient to establish his entitlement to TTD benefits. Lake County Commissioners v. Walburn, 409 So.2d 153 (Fla. 1st DCA 1982); cf. Square G. Construction Co. v. Grace, 412 So.2d 397, (Fla. 1st DCA 1982).Further, we must reverse the sufficiency of the job search as claimant failed to show either that his work search was successful, but that he was unable to perform the work due to his disability, or that his work search was unsuccessful due to his disability rather than the unavailability of work. Lehigh Corporation v. Byrd, 397 So.2d 1202 (Fla. 1st DCA 1981). The evidence contained in the record clearly establishes claimant's ability to work, refuting any claim of total incapacity during the relevant time periods which would otherwise support an award of TTD benefits. Kennedy & Cohen v. Porter, 380 So.2d 495 (Fla. 1st DCA 1980).
As to the deputy's determination of claimant's average weekly wage based on an alleged stipulation, there is no evidence in the record, and both parties dispute the existence of any stipulation to that effect. Accordingly, we also reverse and remand that portion of the deputy's order for redetermination of claimant's average weekly wage.
JOANOS and THOMPSON, JJ., concur.
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Sanlando Utility Corp. v. Morris, AI-2
...810 (Fla. 1st DCA 1982), especially in the face of medical testimony as to a claimant's ability to work. Forming Contractors v. Barry, 413 So.2d 132 (Fla. 1st DCA 1982). Further, this case does not fall within the narrow situation excusing a work search noted in Square G. Construction, supr......
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Holiday Care Center v. Scriven, AH-167
...in any anatomic sense, to work. For that reason temporary total disability benefits were no longer payable. Forming Contractors v. Barry, 413 So.2d 132 (Fla. 1st DCA 1982); Sanford Nursing & Convalescent Center v. Lowery, 405 So.2d 280 (Fla. 1st DCA 1981); see also (applying pre-1979 law) W......
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White v. White, AF-304
...413 So.2d 132 Samuel WHITE, Ruby WHITE, Appellee. No. AF-304. District Court of Appeal of Florida, First District. April 26, 1982. Appeal from Circuit Court, Duval County; Gordon A. Duncan, Jr., Judge. Henry M. Coxe, III, Coxe & Anderson, Jacksonville, for appellant. S. Gordon Blalock, Blal......
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Sanlando Utility Corp. v. Morris, AI-2
...810 (Fla. 1st DCA 1982), especially in the face of medical testimony as to a claimant's ability to work. Forming Contractors v. Barry, 413 So.2d 132 (Fla. 1st DCA 1982). Further, this case does not fall within the narrow situation excusing a work search noted in Square G. Construction, supr......
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Holiday Care Center v. Scriven, AH-167
...in any anatomic sense, to work. For that reason temporary total disability benefits were no longer payable. Forming Contractors v. Barry, 413 So.2d 132 (Fla. 1st DCA 1982); Sanford Nursing & Convalescent Center v. Lowery, 405 So.2d 280 (Fla. 1st DCA 1981); see also (applying pre-1979 law) W......
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White v. White, AF-304
...413 So.2d 132 Samuel WHITE, Ruby WHITE, Appellee. No. AF-304. District Court of Appeal of Florida, First District. April 26, 1982. Appeal from Circuit Court, Duval County; Gordon A. Duncan, Jr., Judge. Henry M. Coxe, III, Coxe & Anderson, Jacksonville, for appellant. S. Gordon Blalock, Blal......