Holiday Care Center v. Scriven

• Decision Date: 02 August 1982
• Docket Number: No. AH-167,AH-167
• Citation: 418 So.2d 322
• Parties: HOLIDAY CARE CENTER, Peninsular Fire Insurance Company and Corporate Group Service, Inc., Appellants, v. Mary SCRIVEN and Department of Labor and Employment Security, Appellees.
• Court: Florida District Court of Appeals

Page 322

418 So.2d 322

HOLIDAY CARE CENTER, Peninsular Fire Insurance Company and Corporate Group Service, Inc., Appellants, v. Mary SCRIVEN and Department of Labor and Employment Security, Appellees.

No. AH-167.

District Court of Appeal of Florida First District.

Aug. 2, 1982.

Rehearing Denied Sept. 8, 1982.

Joseph E. Smith of Miller & Cooper, Orlando, for appellants.

Edward H. Hurt of Hurt & Parrish, and Bill McCabe of Shepherd, McCabe & Cooley, Orlando, for appellees.

PER CURIAM.

By this appeal the self-insured employer complains of the deputy commissioner's order awarding claimant temporary total disability benefits amounting to less than $350, finding that the employer refused voluntary payment of those benefits in bad faith, and reserving jurisdiction to award an attorney's fee. The benefits awarded were to cover the 27-day period from March 10, 1981, when claimant's orthopedic doctor advised her that she might return to work, albeit with "some occasional back and leg pain," and April 6, 1981, when claimant found new employment, her old job having long since been filled after her injury in November 1980. At the March 10 office visit, the doctor instructed claimant to return on April 21 for another examination, which she did, and on June 12 the doctor found she had reached maximum medical improvement by full recovery without permanent disability. But as of March 10 previously, the self-insured employer, through its servicing agent, had unilaterally terminated temporary total disability benefits upon receiving the doctor's report of his examination and advice to claimant on that day.

Thus we are concerned, before reaching the bad faith issue, with defining the employer's duty to continue paying benefits, previously paid over a period of months for an admitted temporary total disability due to a compensable accident, when the employer learns through the usual course of reporting that the treating physician has advised the injured worker, not yet at maximum medical improvement, to return to work. The question is this: When the injured worker has recovered the ability to work and is searching for work, but has not yet found gainful work, and is not yet at maximum medical improvement, is the worker entitled either to continue temporary total disability benefits as here ordered by the deputy, calculated as the designated percentage of the prior average weekly wage, section 440.15(2), Florida Statutes (1980 Supp.), or to temporary partial disability benefits calculated as another percentage of the difference between the prior average weekly wage and "the salary, wages, and other remuneration the employee is able to earn ..."? Sec. 440.15(4).

We hold that such a worker, being able to work, is not entitled to continuing temporary total disability benefits, but that she is entitled to temporary partial disability benefits during her conscientious search for work in the service of the former employer and elsewhere, until the employee reaches maximum medical improvement.

When this injured and disabled member of the labor force was medically advised on March 10, 1981, to return to work, and there was no other evidence that she could not then gainfully work, she was no longer totally disabled and unable, 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) Walter Glades Condominium v. Morris, 393 So.2d 664 (Fla. 1st DCA 1981); Cling Electric, Inc. v. Jones, 376 So.2d 481 (Fla. 1st DCA 1979). Thus the Court declared through Judge Shivers only recently:

[I]t was improper to have awarded TTD benefits from the date of the accident until such time as claimant reaches MMI. An injured claimant can be less than totally disabled without having reached MMI. (Citation omitted.) The capacity to return to work is the critical issue in determination of TTD. Thus, although claimant was TTD at the time of the award, he may regain, at least partially, his ability to return to work before he reaches MMI. Accordingly, we affirm the award of TTD benefits but amend the order to reflect that such benefits shall continue until claimant reaches MMI or is able to return to work. (Citations omitted; emphasis in original.)

Willard Kaufman Co. v. Rawlings, 414 So.2d 641 (Fla. 1st DCA 1982).

But it does not necessarily follow from this worker's recovery of physical ability to work that she also miraculously recovered, by virtue of the doctor's pronouncement, an immediate ability to earn from work the same "salary, wages, and other remuneration" she earlier lost by this industrial accident. At that point she was a worker without a job, still short of maximum medical improvement, still injured and recovering, and in that condition still partially disabled both physically and economically due to "personal injury ... by accident arising out of and in the course of employment." Sec. 440.02(6).

The work search is inextricably involved in the worker's entitlement to commensurate benefits for the continued disability thus defined; the search is involved also in the employer or carrier's obligation to pay those benefits; and it is involved in our recognition of that entitlement and obligation. To search for work conscientiously and effectively is the chapter 440 obligation of any injured and unemployed worker not physically disabled to work. That is the clear mandate of this Court's cited decisions refusing to excuse a worker's failure to search, or his inadequate search, due to subjective but medically unverifiable claims of inability to work or to search. Yet just as the work search is the linchpin of any effort to return to gainful work from a condition disabling work, and is therefore the predicate for any claim based on continued disability to work as gainfully as before, in the case of one still recovering from an industrial injury the search for work must also be recognized as both (1) an economically significant consequence of the compensable injury and (2) an enterprise qualitatively affected by the residue of injury.

The first point is self-evident: simply being able to work and to search for work is not economically equivalent to new gainful employment. Thus the compensable injury continues temporarily to manifest itself, until maximum medical improvement, in a form of partial disability for which section 440.15(4)(a) requires commensurate compensation "based on actual wage loss." The second point is perhaps more problematic from an evidentiary standpoint: though it may be so, one cannot always hope to prove that, putting it in the terms of this case, the worker's "occasional back and leg pain" troubled her search. But that inference reasonably attends one who only just recovered the ability to work and is not yet as vigorous as she will be; and to deny that inference because we cannot measure it slices the human condition too abstractly and far too finely.

In Topeka Inn Management v. Pate, 414 So.2d 1184 (Fla. 1st DCA 1982), the Court ordered continuing wage loss benefits for permanent disability though "her wage loss during this period of time was not solely due to her compensable injury," and the wage loss was caused also by claimant's need to care for her ill husband. Here, in the same way and perhaps for stronger reasons pertinent to temporary benefits, see Sanford Nursing & Convalescent Center, supra, 405 So.2d at 282-83 (Ervin, J., dissenting), this worker's temporary wage loss, sustained while still recovering and searching satisfactorily for work to assuage that loss, is not any the less a consequence of her continuing injury because job scarcity contributed also. She was therefore entitled, beginning March 10, 1981, to commensurate benefits for temporary partial disability. Sec. 440.15(4).

Commensurate compensation for temporary partial disability to earn is as specified in section 440.15(4):

95 percent of the difference between 85 percent of the employee's average weekly wage and the salary, wages, and other remuneration the employee is able to earn, as compared on a weekly basis; however, the weekly wage-loss benefits shall not exceed an amount equal to 66 2/3 percent of the employee's average weekly wage at the time of injury.

One dollar factor in the formula, the worker's average weekly wage at the time of injury, is of course known; the other, the amount "the employee is able to earn," is zero at the beginning of the period of conscientious work search, here March 11, 1981. The latter factor will rise to a particular dollar amount if during the search, still before maximum medical improvement, the worker declines an employment opportunity at that particular rate of pay in order to continue seeking more gainful work or for other reasons. And if at any time the employer or carrier rightly perceives that the worker's search is not conscientious, the worker's entitlement to temporary partial disability compensation on this basis ceases.

The centrality of a work search to the issue at hand thus reappears with new force. The character and progress of the search is the employer's or carrier's business as well as the worker's. No longer will the employer or carrier abruptly terminate all benefits upon receiving a doctor's report releasing a still-healing worker to work. The obligation to pay benefits is transformed from total to partial benefits, as stated, but the obligation to pay benefits continues and, in the employer's or carrier's own interests, will be monitored by contact with the searching worker. The common incentive of both unemployed worker and employer/carrier to reestablish gainful employment serves the self-executing goals of chapter 440 and, in the employer and carrier, militates against the laissez-faire attitude condemned by this Court in Florida Erection...