Irving v. City of Daytona Beach, BD-29

CourtCourt of Appeal of Florida (US)
Citation472 So.2d 810,10 Fla. L. Weekly 1643
Docket NumberNo. BD-29,BD-29
Parties10 Fla. L. Weekly 1643 Shawn IRVING, Appellant, v. CITY OF DAYTONA BEACH, Appellee.
Decision Date03 July 1985

Bill McCabe and Edward H. Hurt, Jr., Orlando, for appellant.

Marie Hartman, Asst. City Atty., Daytona Beach, for appellee.

ZEHMER, Judge.

This case is a classic illustration of the well-recognized proposition that the claimant's credibility is the key to successful prosecution of his claim.

Claimant appeals an order denying his claim for wage-loss benefits for the months March through June 1984. Claimant filed a wage-loss claim for February through June, but the claim for June was withdrawn during the final hearing with the approval of the deputy commissioner. Accordingly, that portion of the order denying wage-loss benefits for June was included in error and is ordered stricken.

In support of the claimed wage loss for February through May, claimant submitted wage-loss forms containing the name of the business and the person contacted, the date of each application, and the results thereof. Claimant identified these job search lists and testified that he contacted each of the places listed, that a job was available at the time of his contact, that he showed the potential employers a doctor's statement indicating the limitations imposed by his injury, and that he was refused employment. In addition, he specifically identified several businesses on the list where he supposedly made written applications for work. The record indicates that claimant made twenty-six such contacts in February, twenty contacts in March, twenty-four contacts in April, and twenty contacts in May. One of the listed contacts was a hospital where he ultimately obtained employment in July.

The employer undertook to verify the applications listed by claimant on these forms and did so by letters sent to a number of the prospective employers. As a result of this inquiry, the employer and carrier presented live testimony by representatives from several of the prospective employers to establish that claimant had not, in fact, made a written application for jobs on the dates indicated on the job search forms. The employer and carrier apparently did not question any of the job applications made during February. However, two witnesses testified there were no written job applications on file at their respective businesses for March, as testified by claimant. Another witness gave similar testimony for April, and a fourth witness did likewise for May. Although the testimony of two of the four witnesses was not conclusive that claimant could not have approached and talked to some other person at the business regarding prospective employment, the testimony of all four, if believed, established that claimant had not made the written job applications as he claimed on direct examination.

The deputy commissioner awarded wage-loss...

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11 cases
  • Ullman v. City of Tampa Parks Dept.
    • United States
    • Florida District Court of Appeals
    • September 15, 1993
    ...claims, as the trier of fact, has the right to determine the credibility of witnesses, including the claimant. Irving v. City of Daytona Beach, 472 So.2d 810 (Fla. 1st DCA 1985). We conclude, therefore, that the JCC's finding that Mr. Ullman's back complaints do not relate to an industrial ......
  • Ninia v. Southwest Bottlers
    • United States
    • Florida District Court of Appeals
    • July 21, 1989
    ...1988); Calleyro v. Mt. Sinai Hospital, 504 So.2d 1336 (Fla. 1st DCA), review denied, 513 So.2d 1062 (Fla.1987); Irving v. City of Daytona Beach, 472 So.2d 810 (Fla. 1st DCA 1985). Finally, even though a claimant is justifiably fired for reasons unrelated to his injury, "he may still be elig......
  • Village Inn Restaurant v. Aridi
    • United States
    • Florida District Court of Appeals
    • March 31, 1989
    ...449 So.2d 830 (Fla. 1st DCA 1984). We decline to disturb the DC's findings regarding claimant's credibility. Irving v. City of Daytona Beach, 472 So.2d 810 (Fla. 1st DCA 1985). Whatever of the DC's findings was made in reliance upon claimant's testimony should be supplemented by the discuss......
  • Ramada Inn Surfside v. Swanson, 89-1776
    • United States
    • Florida District Court of Appeals
    • April 18, 1990
    ...claims to determine the credibility of all witnesses, including the claimant. Calleyro, 504 So.2d at 1338; Irving v. City of Daytona Beach, 472 So.2d 810 (Fla. 1st DCA 1985). In a similar vein, this court is not permitted to substitute its judgment for that of the judge with regard to a fac......
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