Irving v. City of Daytona Beach, BD-29
Court | Court of Appeal of Florida (US) |
Citation | 472 So.2d 810,10 Fla. L. Weekly 1643 |
Docket Number | No. BD-29,BD-29 |
Parties | 10 Fla. L. Weekly 1643 Shawn IRVING, Appellant, v. CITY OF DAYTONA BEACH, Appellee. |
Decision Date | 03 July 1985 |
Bill McCabe and Edward H. Hurt, Jr., Orlando, for appellant.
Marie Hartman, Asst. City Atty., Daytona Beach, for appellee.
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 Claimant filed a wage-loss claim for February through June, but the claim for June was withdrawn during the final hearing with the approval of the deputy commissioner.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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