Hurley v. Stuart Fine Foods, 95-3945
| Decision Date | 27 January 1997 |
| Docket Number | No. 95-3945,95-3945 |
| Parties | 22 Fla. L. Weekly D336 Deborah L. HURLEY, Appellant, v. STUART FINE FOODS and Claims Center, Appellees. |
| Court | Florida District Court of Appeals |
Thomas Hodas of Patrick J. Malone, P.A., Jupiter, for Appellant.
Jack A. Weiss and Russell S. Whittle of Conroy, Simberg, Lewis & Ganon, P.A., West Palm Beach, for Appellees.
Deborah L. Hurley appeals a workers' compensation order which, on the basis of the voluntary limitation of income provision of section 440.15(4)(b), Florida Statutes (1991), 1 denied her claim for temporary partial disability and/or wage loss benefits from August 2, 1994, and continuing. She contends that the Judge of Compensation Claims (JCC) erroneously found that she unreasonably refused a modified cashier's position and thereby "voluntarily limited her income." We affirm the order insofar as it determines that claimant voluntarily limited her income when she lived in Hobe Sound. Claimant also contends that the JCC erroneously found that the position continued to be available even after she moved away. We agree with claimant that the deemed earnings provision of section 440.15(4)(b), Florida Statutes (1991), should not have been applied beyond "the next three biweekly periods," and we reverse the order in part accordingly.
As to the contention that the JCC ignored evidence which showed that the proffered cashier's job was beyond claimant's physical capabilities, the JCC was free not to credit either the chiropractor's opinion or the neurologist's original opinion. The JCC gave adequate reasons for relying on the neurologist's (revised) opinion that claimant was physically able to perform the job, in light of the accommodations the employer offered to make. The JCC gave adequate reasons for relying on this opinion instead of the opinion of the chiropractor, who, based on his own physical capacities assessment, opined that the cashier's position was beyond claimant's physical capabilities. Travelodge and Royal Ins. v. Pierre-Gilles, 625 So.2d 1280, 1282 (Fla. 1st DCA 1993).
The JCC also found both that the claimant voluntarily removed herself from the geographical location of the job and that she should be deemed to have received wages for the entire period of the benefits in question, since the job offered "was, and continues to be, within reasonable geographic proximity of the claimant's present home." 2 There is no requirement that a claimant continue to live in her pre-injury residence. Department of Transp. v. Montero, 568 So.2d 65, 66 (Fla. 1st DCA 1990); Lykes Bros. Inc. v. Jackson, 461 So.2d 247, 249 (Fla. 1st DCA 1984). In the present case, the JCC made no finding that the move was the result of "improper motivation," 3 and "there is no evidence that claimant's relocation following h[er] injury was motivated by a desire to avoid work." Genelus v. Boran, Craig, Schreck Constr. Co., 438 So.2d 964, 966 (Fla. 1st DCA 1983). The JCC's denial of benefits because claimant voluntarily moved, without finding that the move was the product of "improper motivation," must be reversed.
Further, we disagree with the JCC's determination that the offer of a job entailing a daily round-trip of 134 miles constitutes a job offer within a "reasonable geographic area," as required by section 440.15(4)(b), Florida Statutes (1991), 4 B & J Windows v. Sweitzer, 420 So.2d 363, 364 (Fla. 1st DCA 1982)(injured worker not required to accept part-time employment twenty miles from her home, necessitating a daily round trip of forty miles), at least for this claimant, who had an anterior discectomy with inter-body fusion at C5-6 and C6-7 in 1992. Uncontroverted testimony at the merits hearing showed that claimant has continuing neck pains, which are exacerbated by prolonged driving.
Having erred in finding that the job "continues to be within reasonable proximity of claimant's present home," the JCC also erred in concluding, on the basis of Hyatt Regency Westshore v. Robinson, 629 So.2d 1088 (Fla 1st DCA 1994), 5 that the deemed earnings provision of section 440.15(4)(b), Florida Statutes (1991) should automatically apply for more than three biweekly periods. Before the six-week period ended, the claimant had moved from Hobe Sound, so that the cashier's job offer was no longer "appropriate employment" within the meaning of the statute.
We conclude, therefore, that the employer/carrier should be permitted to deem earnings on account of the claimant's refusal to accept...
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