Litvin v. St. Lucie County Sheriff's Dept.

Decision Date15 May 1992
Docket NumberNo. 91-1598,91-1598
Citation599 So.2d 1353
Parties17 Fla. L. Weekly D1273 Lester LITVIN, Appellant, v. ST. LUCIE COUNTY SHERIFF'S DEPARTMENT and Crawford & Company, Appellees.
CourtFlorida District Court of Appeals

Jerold Feuer, Miami, for appellant.

James T. Walker of Brennan, Hayskar, Jefferson & Gorman, P.A., Ft. Pierce, for appellees.

Robert A. Butterworth, Atty. Gen., and Kathleen E. Moore, Asst. Atty. Gen., Tallahassee, for State of Fla. as amicus curiae.

ALLEN, Judge.

The claimant appeals a workers' compensation order by which he was awarded compensation which included wage loss benefits commencing on November 6, 1990. The claim for wage loss prior to that date was denied, based on the absence of an adequate job search and the application of section 440.15(3)(b)2, Florida Statutes (1990). We conclude that the employer/servicing agent's failure to properly notify the claimant of a job search responsibility precludes the denial of benefits prior to July 1, 1990, when the amended version of section 440.15(3)(b)2 became effective.

The claimant sustained injuries in three separate industrial accidents. When the injuries from the last accident led to medical restrictions as to the claimant's work activities, the employer terminated the claimant's employment. The employer/servicing agent failed to inform the claimant that a job search might be required to obtain wage loss benefits after the last accident. The job search notice which was provided upon one of the earlier accidents, at a time when the claimant continued working for the employer, does not obviate the employer/servicing agent's obligation to furnish the necessary wage loss and job search information with regard to the last accident.

The employer/servicing agent's obligation to properly notify and inform the claimant of his rights and responsibilities is an aspect of the self-executing nature of the Workers' Compensation Law, and the employer/servicing agent's failure to comply with this obligation may relieve the claimant of a job search responsibility. See e.g., Morris v. Metal Industries, 491 So.2d 312 (Fla. 1st DCA 1986). Although the circumstances still must demonstrate the necessary causal connection between the claimant's injury and the wage loss, see Burger King v. Nicholas, 580 So.2d 656 (Fla. 1st DCA 1991), the judge found such causation in awarding benefits for wage loss when the claimant eventually performed an adequate job search after November 6, 1990. The absence of an adequate job search during earlier periods does not preclude an award of benefits for wage loss which occurred prior to July 1, 1990, when an amendment to section 440.15(3)(b)2 became effective. 1

As amended, section 440.15(3)(b)2 now provides, in part, that:

Wage-loss forms and job search reports are to be mailed to the employer, carrier, or servicing agent within 14 days after the time benefits are due. Failure of an employee to timely request benefits and file the appropriate job search forms showing that he looked for a minimum of 5 jobs in each biweekly period (unless a judge of compensation claims determines fewer job searches are justified due to the availability of suitable employment) after the employee has knowledge that a job search is required, whether he has been advised by the employer, carrier, servicing agent, or his attorney, shall result in benefits not being payable during the time that the employee fails to timely file his request for wage loss and the job search reports.

This amendment alters the prior case law which established that, if the employer/carrier/servicing agent did not furnish the pertinent information and forms, an untimely filing would be excused, see e.g. Gall Silica Mining Co. v. Sheffield, 401 So.2d 1169 (Fla. 1st DCA 1981), and a claimant would be relieved of any job search requirement despite having actual knowledge of this responsibility through the advice of an attorney. See e.g., Morris. The amended version of section 440.15(3)(b)2 now predicates a claimant's job search responsibility upon actual knowledge, which was furnished through the advice of the claimant's attorney in the present case. We reject the claimant's contention that the amended statute offends the attorney-client privilege, or that it violates the constitutional rights of equal protection and access to the courts. We likewise reject the claimant's further contention that the amended statute may not be applied in this case where the accidents occurred before the effective date of the amendment.

It is a well-established principle that the Workers' Compensation Law creates a contractual obligation between the involved parties, so that their substantive rights become fixed at the time of the accident and injury. See Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977); Sullivan v. Mayo, 121 So.2d 424 (Fla.1960). However, the application of procedural amendments such as burden of proof enactments is not constrained by the date of accident and injury, as there is no vested right in any given mode of procedure. See Walker. Various cases have emphasized this distinction, and in City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA), rev. denied, 458 So.2d 271 (Fla.1984), this court determined that an earlier amendment to section 440.15(3)(b)2, addressing the necessary elements for a wage loss claim, was a procedural burden of proof enactment which could be applied without regard to the date of accident and injury. We conclude that the contested amendment in the present case is of a similar character. Although it does not directly specify a necessary element of proof, it relates to the time, manner, scope, and circumstances under which a job search report must be made in connection with a wage loss claim. A good faith job search is often an evidentiary vehicle which supports such a claim, and insofar as the contested amendment affects this responsibility it is in the nature of a procedural burden of proof enactment. 2

The 14-day filing time which the amendment also imposes is similar to a statute of limitations or statute of repose. Such enactments are given only prospective effect in the absence of a clear legislative expression to the contrary. See Melendez v. Dreis and Krump Mfg. Co., 515 So.2d 735 (Fla.1987); Johnson v. Szymanski, 368 So.2d 370 (Fla. 2d DCA), cert. denied, 378 So.2d 350 (Fla.1979). But, while prospective effect might preclude application of the amendment to a prior occurrence or an accrued claim, 3 a wage loss claim does not arise upon the...

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24 cases
  • Nickolls v. University of Florida
    • United States
    • Florida District Court of Appeals
    • September 4, 1992
    ...the amended statute is not applicable to wage-loss claims which accrued before its effective date. Litvin v. St. Lucie County Sheriff's Dep't, 599 So.2d 1353 (Fla. 1st DCA 1991). ...
  • McCarthy v. Bay Area Signs
    • United States
    • Florida District Court of Appeals
    • July 25, 1994
    ...has a vested right in any particular procedure, including the allocation of the burden of proof. See Litvin v. St. Lucie County Sheriff's Dept., 599 So.2d 1353 (Fla. 1st DCA 1992); City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA), rev. denied, 458 So.2d 271 (Fla.1984). Both subsectio......
  • Kenz v. Miami-Dade Cnty.
    • United States
    • Florida District Court of Appeals
    • April 24, 2013
    ...contract and we find no reason to depart from this general rule for conflict-of-laws purposes.See also Litvin v. St. Lucie Cnty. Sheriff's Dep't, 599 So. 2d 1353, 1355 (Fla. 1st DCA 1992) (concluding that statutory amendment that affected an evidentiary vehicle to support a claim was "in th......
  • Kenz v. Miami-Dade Cnty.
    • United States
    • Florida District Court of Appeals
    • June 26, 2013
    ...contract and we find no reason to depart from this general rule for conflict-of-laws purposes.See also Litvin v. St. Lucie Cnty. Sheriff's Dep't, 599 So.2d 1353, 1355 (Fla. 1st DCA 1992) (concluding that statutory amendment that affected an evidentiary vehicle to support a claim was “in the......
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