Kilbourne & Sons v. Kilbourne, 93-3796

• Decision Date: 19 December 1995
• Docket Number: No. 93-3796,93-3796
• Citation: 677 So.2d 855
• Parties: 21 Fla. L. Weekly D19 KILBOURNE & SONS and Nationwide Insurance, Appellants/Cross-Appellees, v. John KILBOURNE, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 855

677 So.2d 855

21 Fla. L. Weekly D19

KILBOURNE & SONS and Nationwide Insurance, Appellants/Cross-Appellees, v. John KILBOURNE, Appellee/Cross-Appellant.

No. 93-3796.

District Court of Appeal of Florida,

First District.

Dec. 19, 1995.

Jack A. Weiss of Conroy, Simberg & Lewis, P.A., West Palm Beach, for Appellants/Cross-Appellees.

David L. Kahn, Ft. Lauderdale, for Appellee/Cross-Appellant.

SMITH, Senior Judge.

In this workers' compensation case, the employer/carrier (E/C) appeal and the claimant cross-appeals orders of the Judges of Compensation Claims (JCC). ¹ We affirm in part and reverse in part as to the issues on appeal by the E/C. We reverse as to the two issues raised by the claimant on cross-appeal.

The E/C argue for reversal on grounds: (1) that the JCC's finding that the claimant satisfied his initial burden of showing a causal relationship between the loss of earnings and the industrial accident was not supported by competent substantial evidence; (2) that the JCC erred by failing to allow inquiry as to the claimant's knowledge of his obligation to perform a good faith job search when the source of that knowledge is the claimant's attorney; (3) that the JCC erred in ruling that the E/C waived the defense of lack of a good faith job search when the E/C did not specifically state this defense on each of its notices of denial, and (4) that the JCC erred in reserving jurisdiction on attorney's fees in the order on remand when the district court of appeal granted jurisdiction on remand only to determine the permanent impairment rating. We affirm without discussion on issues (1) and (4), and reverse on issues (2) and (3).

On the cross-appeal, the claimant argues for reversal of certain rulings made by the JCC, contending: (1) that the JCC's finding that the maximum medical improvement (MMI) date was November 11, 1992, was not supported by competent substantial evidence, and (2) that the JCC's determination of penalties based on the date the notices of denial were mailed as opposed to the date they were filed with the Division was in error. We reverse as to issues (1) and (2) on the cross-appeal.

Kilbourne, the claimant, while working for Kilbourne & Sons, suffered a potentially compensable industrial accident on November 30, 1990, when a wire bristle from a paint brush flew out and penetrated his left eye. Claimant was treated for his injury by Dr. Litinsky, who diagnosed a 14% impairment because of a decrease in the claimant's depth perception and glaucoma resulting from the puncture wound. Dr. Litinsky released the claimant back to work with "no restrictions" but testified that the claimant's work activities must be tempered by his lack of depth perception.

Claimant testified at the hearing below that prior to the accident he was hired as a salesman and estimator but that he also drove a truck, operated a paint machine, assisted in laying asphalt and concrete, applied sealing coats and assisted in cleaning job sites. Claimant further testified that after his injury he returned to Kilbourne & Sons to call on customers, make estimates and sometimes drive a truck, but was not able to perform the other tasks that were undertaken prior to the accident.

Subsequently, the claimant left his employment with Kilbourne & Sons and moved to North Carolina. Thereafter, the claimant filed wage loss forms. The E/C, in response, filed notices of denial stating, as reasons for denial, that the claimant's wage loss was not due to any compensable injury and that the claimant was released back to work with no restrictions, and any "other defenses which may become known." Upon final hearing before the JCC the E/C challenged the sufficiency of the claimant's job search efforts.

At the claimant's deposition, taken on October 14, 1993, the E/C inquired as to how the claimant became informed of his obligation to fill out wage loss forms and his job search requirement, and whether he was advised by his counsel. The claimant answered that his counsel had informed him of his responsibility. Upon further inquiry by E/C, claimant's counsel objected on the basis of the attorney-client privilege. At an emergency hearing on a motion to compel answers and again at the final hearing, the JCC sustained the objection barring the E/C from inquiring into whether the claimant had adequate notice of his obligation to file wage loss forms.

At the final hearing, the claimant argued that the E/C waived its defense of a lack of a good faith job search when it failed to specifically list this defense on each of its notices of denial. The E/C defended on the grounds that the notices of denial stated "any other defense that may become known" and that the pretrial stipulation, entered into four months prior to final hearing, specifically listed the defense of lack of a good faith job search. The JCC found that the claimant was on notice of the defense three days after entry of the pretrial stipulation on June 17, 1993, and thus was required to perform a good faith job search after that time. However, the JCC concluded, prior to June 20, 1993 the E/C had not notified the claimant of this defense in the notices of denial of wage loss claims and thus the E/C waived the lack of a good faith job search defense.

A claimant is required to show evidence of an adequate good faith job search. Nickolls v. University of Florida, 606 So.2d 410 (Fla. 1st DCA 1992). However, the claimant's work search responsibility is predicated upon actual notice of the requirement to perform the work search. Section 440.15(3)(b)2, Florida Statutes (Supp.1990). The burden is upon the E/C to demonstrate that the claimant knew of the job search requirement and the wage loss reporting requirement. Marbury v. Holiday Inn, 660 So.2d 799 (Fla. 1st DCA 1995); Mac Papers, Inc. v. Cruz, 658 So.2d 108 (Fla. 1st DCA 1995). In Litvin v. St. Lucie County Sheriff's Dept., 599 So.2d 1353 (Fla. 1st DCA 1992), this court denied wage loss benefits to the claimant during the period that the claimant did not perform a good faith job search because the claimant had been fully advised of his obligation under Section 440.15(3)(b)2 by his attorney. See also, Scotty's v. Jacoby, 611 So.2d 101 (Fla. 1st DCA 1992).

In the instant case the JCC denied, on the basis of the attorney-client privilege, the E/C's direct inquiry as to whether or not the claimant's attorney specifically advised the claimant of the requirement to perform a good faith job search. The JCC thus effectively prevented the E/C from being able to satisfy its burden of proving that the claimant knew of but failed to comply with the statutory requirements under section 440.15(3)(b)2.

We conclude that the JCC's denial of the inquiry as to the claimant's knowledge of his job search requirements and the source of that knowledge was error. We have previously held that section 440.15(3)(b)2 does not offend the attorney-client privilege, nor does it violate the constitutional rights of equal protection and access to the courts. Litvin v. St. Lucie County Sheriff's Dept., supra. We have also held that since workers' compensation remains an employer/carrier monitored system the burden is on the E/C to demonstrate that the claimant knew...