I.A.T.S.E. v. Nesselroad

• Decision Date: 14 October 1988
• Docket Number: No. 87-1430,87-1430
• Citation: 13 Fla. L. Weekly 2337,534 So.2d 709
• Parties: 13 Fla. L. Weekly 2337 I.A.T.S.E. and Claims Center, Appellants, v. James M. NESSELROAD, Appellee.
• Court: Florida District Court of Appeals

Page 709

534 So.2d 709

13 Fla. L. Weekly 2337

I.A.T.S.E. and Claims Center, Appellants, v. James M. NESSELROAD, Appellee.

No. 87-1430.

District Court of Appeal of Florida First District.

Oct. 14, 1988.

Rehearing Denied Dec. 29, 1988.

Ivan Matusek and Anthony V. Cortese of Matusek, Ogden, McKnight & Hudson, P.A., St. Petersburg, for appellants.

Roy L. Glass of Roy L. Glass, P.A., St. Petersburg, for appellee.

BOOTH, Judge.

This cause is before us on appeal and cross appeal of an order finding that claimant has a permanent impairment, setting his average weekly wage, and ordering wage-loss benefits. The deputy commissioner also denied the employer/servicing agent's request for an overpayment credit, denied claimant's two requests for advances, and found that claimant did not need psychiatric care. Although the parties raise several issues, we find it necessary to address only whether claimant voluntarily limited his income and the effect of the stipulation concerning claimant's average weekly wage.

Claimant is a 34-year-old member of the International Alliance of Theatrical and Stage Employees (union) and performed heavy manual labor until he injured his back in November 1984. He required four operations before reaching maximum medical improvement in October 1986. Prior to his injury, he worked two to three days weekly but was able to earn enough to support himself. Because claimant reached MMI with a permanent impairment and lifting restrictions, he is no longer able to do the heavy union work.

Although claimant notified the union that he was available for work following MMI, he took no further steps to secure union work until he attended a union meeting several months later, shortly before the hearing below. During this time, he performed no job search, other than acquiring a part-time job working three nights weekly in a bar. He earns approximately $60 a week. Although the deputy made no finding on the subject, medical testimony indicated that, despite his impairment, claimant is capable of performing full-time light work. However, claimant's lack of education and skills make it unlikely he will be able to achieve his preinjury income without retraining.

On two occasions, the employer/servicing agent arranged for rehabilitation providers to meet with claimant to devise a plan for retraining in a new occupation. Both counselors indicated that claimant's attitude made rehabilitation impossible. Specifically, claimant did not want to attend school to retrain, did not want to work 40 hours a week, wanted a job that allowed him to set his own hours, and wanted to earn his preinjury income. One report indicated that when a counselor forced claimant to confront the likelihood that he would need to work a full-time job for the rest of his life, claimant expressed suicidal intentions. The deputy initially ruled that claimant voluntarily limited his income and refused rehabilitation, but reversed himself in an amended order holding that there was no voluntary limitation of income. The finding that claimant refused rehabilitation was not vacated.

A claimant who is not physically disabled to work must search for work conscientiously, Vantage Pointe v. Sowers, 463 So.2d 396 (Fla. 1st DCA 1985), and he must prove all elements of a wage-loss claim, including a causal relationship between the injury and wage loss. Tampa Electric Company v. Bradshaw, 477 So.2d 624 (Fla. 1st DCA 1985). Where a claimant cannot return to his...