Leffler v. Grand Union Co., AB-500
| Decision Date | 11 February 1982 |
| Docket Number | No. AB-500,AB-500 |
| Citation | 409 So.2d 1145 |
| Court | Florida District Court of Appeals |
| Parties | Arlene LEFFLER, Appellant, v. GRAND UNION COMPANY and Crawford & Company, Appellees. |
Robert H. Schott of Gamba, Junod & Schott, Palm City, for appellant.
John L. Phillips of Magill & Reid, West Palm Beach, for appellees.
The claimant presents the following points on this worker's compensation appeal: (1) That the deputy commissioner erred in failing to take vacation and holiday pay into consideration when determining her average weekly wage; (2) That the deputy erred in finding that she had voluntarily limited her income from April, 1980, through September 7, 1980; (3) That the deputy erred in finding that she could have earned $99.20 per week if she had not limited her earnings; and, (4) That the deputy erred in failing to award penalties and interest. We affirm as to the first two issues and the deputy's denial of penalties; however, we find merit in the other two arguments.
Claimant suffered a compensable injury to her right arm on November 9, 1979, at which time she was employed as a cashier at the Grand Union Grocery Store in Stuart, Florida. She reached maximum medical improvement as of March 12, 1980. However, she did not return to work until September 7, 1980, at which time she was offered a clerical job by Grand Union. She thereafter claimed wage loss benefits between March 12, 1980, and September 7, 1980, and an adjustment in the temporary total disability benefits received previously. Attorney's fees, costs, and interest were also sought.
In his order the deputy made a specific finding, with which we agree, that the claimant had voluntarily limited her income by not conducting an adequate work search after the date of maximum medical improvement. This finding, in turn, triggers the provisions of Section 440.15(3)(b)(2), Florida Statutes (1979):
The amount determined to be the salary, wages, and other remunerations the employee is able to earn after reaching the date of maximum medical improvement shall in no case be less than the sum actually being earned by the employee, including earnings from sheltered employment. In the event the employee voluntarily limits his or her income or fails to accept employment commensurate with his or her abilities, the salary, wages, and other remuneration the employee is able to earn after the date of maximum medical improvement shall be deemed to be the amount which would have been earned if the employee did not limit his or her income or accepted appropriate employment.... (emphasis supplied)
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