Four Quarters Habitat, Inc. v. Miller

• Decision Date: 29 October 1981
• Docket Number: No. ZZ-109,ZZ-109
• Citation: 405 So.2d 475
• Parties: FOUR QUARTERS HABITAT, INC., and Aetna Casualty and Surety Company, Appellants, v. Brian MILLER, Appellee.
• Court: Florida District Court of Appeals

Page 475

405 So.2d 475

FOUR QUARTERS HABITAT, INC., and Aetna Casualty and Surety Company, Appellants, v. Brian MILLER, Appellee.

No. ZZ-109.

District Court of Appeal of Florida, First District.

Oct. 29, 1981.

Lewis M. Ress and Mark J. Mintz of Ress, Gomez, Rosenberg & Howland, North Miami, for appellants.

Eugene E. Williams and Mark L. Zientz of Williams & Zientz, Coral Gables, for appellee.

ERVIN, Judge.

In this workers' compensation action, the employer/carrier (e/c) appeals from the order of the deputy commissioner (D.C.) awarding claimant (1) temporary total disability (TTD) benefits from August 13, 1979 (the date of the accident), through July 11, 1980, the date determined to be that of maximum medical improvement (MMI), at a compensation rate of $190.87 per week based on an average weekly wage (AWW) of $286.15, (2) attorney's fees and (3) penalties. The appellant raises four points on appeal. We agree that all of the points require either reversal or remand.

The first issue asks whether the D.C. erred in awarding claimant TTD benefits beyond the date the e/c stipulated claimant was entitled to TTD benefits, or March 5, 1980. ¹ The record establishes that claimant's treating physician, Dr. Mims, on February 19, 1980, advised claimant that he could then perform light work. The record shows that the claimant, following this examination, made only one attempt to seek work with his former employer by placing a call to him in April, 1980, and asking if he could resume employment once he was able to work. Yet he never tested his employability by attempting to resume his former work, or by seeking other employment. It has been repeatedly held that it is error to award TTD benefits where there is either no medical evidence of claimant's inability to work, or no conscientious effort is made by the claimant to return to work. Action Pool Builders, Inc. v. Grant, IRC Order 2-3743 (March 23, 1979); Mendivil v. Tampa Envelope Manufacturing Company, 233 So.2d 5 (Fla. 1970); Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981); Tallahassee Coca-Cola Bottling Company v. Parramore, 395 So.2d 275 (Fla.1st DCA 1981); Stewart-Decatur Security v. Kropp, 396 So.2d 256 (Fla.1st DCA 1981); McDonnell Douglas v. Holliday, 397 So.2d 366 (Fla. 1st DCA 1981). In Walter Glades Condominium v. Morris, supra, we reversed an order awarding TTD benefits on a record showing that claimant, during the period of asserted disability, made one effort to return to work, and was told by her employer to come back when she was well. We held that in the absence of medical evidence relating to her inability to work, claimant was obliged to test her ability to work, and that her testimony stating only that she was unable to work did not meet the requirement of an adequate work search.

Although Dr. Mims testified that the claimant should seek only light work, those directions did not excuse the claimant from the rule that he was obliged to search for work within his physical limitations. See T.G. Lee Foods, Inc. v. Walker, 395 So.2d 252 (Fla. 1st DCA 1981); Stewart-Decatur Security v. Kropp, supra. Since there was no such search, the award is therefore reversed and the case is remanded with directions that an award of TTD be entered consistent with the time frame stipulated by the e/c.

Appellant next argues that the D.C. erred in computing claimant's AWW by selecting the method provided in Section 440.14(1)(a), Florida Statutes (1979) ², instead of subsection (b), pertaining to the similar employee method of computation, ³ and that the D.C. erred also in accepting claimant's testimony over the e/c's representative.

For ten weeks prior to his employment by Four Quarters Habitat, claimant testified he had worked for another employer at a job similar to his later occupation with Four Quarters at $7.50 per hour for a 40-hour work week. After leaving that employment, he then worked for three-and-a-half weeks as a carpenter with Four Quarters at a rate of $6.00 per hour for 40-hours per week. The claimant, however, offered no testimony of the wages he actually received from either employer. In determining the AWW, the deputy, following the provisions of Section 440.14(1)(a), took a weighted, combined average of claimant's presumed income from the two employers for the 13-week period preceding the accident, thereby arriving at the figure of $286.15 per week. In so doing, it was necessary for him to reject the testimony of the employer's representative that claimant had worked for less than one full day as being unreliable because it conflicted with the employer's time records revealing that claimant had actually worked a total of 131/2 hours during the week in which the injury occurred, as well as to reject the employer's evidence relating to the similar employee method. Such evidence, consisting of payroll records of three employees who allegedly performed similar labors, was discarded because records of two of the employees reflected that they did not work 90% of the requisite statutory period, while the earnings of the third employee were not accepted because he was not paid the same hourly wage rate as the claimant.

Although the D.C. unquestionably has the informed discretion to reject the employer's evidence and accept that of claimant's, nevertheless, claimant did not offer any testimony of the actual wages he earned from the employer. As a consequence, the D.C. had no basis for applying the wage-averaging method found in subsection (1)(a), requiring that the AWW "shall be one-thirteenth of the total amount of wages earned in such employment during the said 13 weeks." (Emphasis supplied)

The similar employee method described in subsection (1)(b) is also inapplicable because the record establishes that claimant had worked in the same type of employment for more than 13 weeks preceding the injury. See Whittle v. Whittle & Sons Janitor Service, 395 So.2d 304 (Fla. 1st DCA 1981). The only subsection of the statute which could have conceivably applied was subsection (4), relating to the full-time weekly wages of an injured employee as established by the contract of employment. Cf. Simpkins v. Watson, 397 So.2d 432 (Fla. 1st DCA 1981). Therefore the D.C. should have only used the contract of employment method.

Appellant next argues that the D.C. incorrectly assessed a reasonable attorney fee in favor of claimant's counsel since the...