Hall v. City of Jacksonville, AS-99

• Decision Date: 28 December 1983
• Docket Number: No. AS-99,AS-99
• Parties: Rosa Lee HALL, Appellant, v. CITY OF JACKSONVILLE and Travelers Insurance Company, Appellees.
• Court: Florida District Court of Appeals

Page 326

443 So.2d 326

Rosa Lee HALL, Appellant, v. CITY OF JACKSONVILLE and Travelers Insurance Company, Appellees.

No. AS-99.

District Court of Appeal of Florida,

First District.

Dec. 28, 1983.

Rehearing Denied Jan. 16, 1984.

Jack Bettman, Jacksonville, for appellant.

E. Robert Williams and James H. McCarthy, Jr., Jacksonville, for appellees.

NIMMONS, Judge.

Hall appeals the deputy commissioner's order denying her petition for modification asserting entitlement to permanent total disability (PTD) or a greater percentage of permanent partial disability (PPD) benefits than the 20% PPD awarded in the original order entered March 9, 1978. We affirm.

In the modification proceedings, Hall asserted that there had been a change of condition under Section 440.28, Florida Statutes, because her disability ¹ had changed since the original hearing. The principal evidentiary predicate presented by Hall was her work search conducted prior to the second hearing and testimony of a vocational rehabilitation expert that she was unemployable.

The deputy's order denying the petition is brief and is set forth as follows:

THIS CAUSE having come on for hearing, the undersigned finds:

1. The claim was predicated on a petition for modification which was predicated in turn on an alleged change of condition which was predicated in turn on a recent job search.

2. The prior Order, however, was not decided on the basis of the adequacy or inadequacy, presence or absence of a job search. Indeed the prior Order recognizes that Claimant has a large disability. Presumably such a disability would make Claimant's future employment difficult or impossible. The prior Order, however, turned on the fact that only a fraction of Claimant's physical disability had been shown to be related to the accident. The rest of her disability arose after the accident.

3. Because of the foregoing, the claim should be denied.

Whereupon, it is, therefore,

ORDERED AND ADJUDGED that the claim is denied.

The initial 1978 order awarded 20% PPD, 10% of which was attributable to the surgery necessitated by the compensable accident and 10% of which was attributable to the effects of obesity. That order went on to recite, in part:

9. Claimant doubtless has a much greater disability, which disability is in fact increasing; because this is due to a degenerative arthritic condition which was not shown to be connected to the accidents.

10. Claimant was not shown to have sustained a loss of wage earning capacity in excess of 20% based on the residuals of the surgical procedure augmented by the obesity.

After close examination of the record in this case, we have been unable to find any evidence indicating any change in condition either in terms of the claimant's physical condition or wage earning capacity. We recognize that a Section 440.28 change in condition should be construed so as to encompass a change in wage earning capacity even though the claimant's physical...