Mackin v. Olde World Cheese Shop
| Decision Date | 14 December 1988 |
| Docket Number | No. 88-425,88-425 |
| Parties | 13 Fla. L. Weekly 2717 Marie MACKIN, Appellant, v. OLDE WORLD CHEESE SHOP, Travelers Insurance Co., Appellees. |
| Court | Florida District Court of Appeals |
Barry M. Salzman, of Chambers & Salzman, P.A., St. Petersburg, for appellant.
Ellen H. Lorenzen, of Whalen & Morlan, Tampa, for appellees.
The claimant in this workers' compensation case appeals an order awarding temporary wage-loss benefits based on the "deemed earnings" provision of section 440.15(4)(b), Florida Statutes, rather than on actual lost wages. Finding no basis for use of the deemed earnings provision, we reverse and remand for recalculation of claimant's wage loss.
According to the record, the claimant sustained a compensable back injury while working as a part-time waitress for appellee, Olde World Cheese Shop, after which the employer/carrier (E/C) paid temporary total disability benefits until claimant was able to return to her job. Claimant worked for approximately one year after returning, but eventually became unable to work quickly enough to handle the fast-paced business lunch crowd, and was terminated from her employment on April 9, 1986. After her termination, claimant sought part-time work, submitted job search forms, and received wage-loss benefits from the E/C. In May of 1986 she obtained work as a part-time waitress at the Essex Pub, earning approximately $60 per week. In mid-August 1986, however, she quit her job at the Essex Pub, having found herself unable to withstand the job's physical requirements. 1
Approximately one week after leaving the Essex Pub, claimant had a telephone conversation with the carrier's claims adjuster, during which she was told that she would not be entitled to further wage-loss benefits because she had voluntarily quit her job. Thereafter, claimant received no wage-loss or job search forms from the carrier and, although she did continue to search for part-time work, did not keep any records due to her belief that she was ineligible for benefits.
Claimant contends on appeal that the deputy commissioner (DC) erred in finding that she voluntarily limited her income and, therefore, in awarding wage-loss benefits for the period between August 15, 1986 and July 16, 1987, based on deemed earnings of $64.18 per week. We agree with claimant on two bases. First, although the claimant admittedly left her job at the Essex Pub voluntarily, she clearly testified at the hearing (and no evidence to the contrary was presented) that her reasons for doing so were related to physical difficulties stemming from her industrial accident. Claimant was therefore justified in leaving her job at the Essex Pub and seeking some type of less strenuous employment. See Terhune v. North Brothers Company, 504 So.2d 499 (Fla. 1st DCA 1987). As in Terhune, we find that this case differs from those in which the claimant refuses work solely because he or she desires different employment. Cf. E. B. Malone Corporation v....
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