Malm v. Holiday Theatres

• Decision Date: 12 April 1990
• Docket Number: No. 89-1983,89-1983
• Citation: 560 So.2d 270
• Parties: 15 Fla. L. Weekly D942 Michael MALM, Appellant, v. HOLIDAY THEATRES and Safeco Insurance Co., Appellees.
• Court: Florida District Court of Appeals

Page 270

560 So.2d 270

15 Fla. L. Weekly D942

Michael MALM, Appellant, v. HOLIDAY THEATRES and Safeco Insurance Co., Appellees.

No. 89-1983.

District Court of Appeal of Florida,

First District.

April 12, 1990.

Rehearing Denied May 25, 1990.

Stuart F. Suskin of Abrams & Suskin, North Miami Beach, for appellant.

Warren Brown of Ress, Mintz and Truppman, North Miami Beach, for appellees.

JOANOS, Judge.

Michael Malm has appealed an order of the judge of compensation claims modifying a 1983 order finding him permanently totally disabled. We reverse.

Malm was 19 years old in 1976, when he fell from a theatre marquee, suffering a depressed skull fracture. In October 1983, after undergoing numerous neurosurgical procedures, Malm was found permanently totally disabled, with massive neurological and psychiatric impairments and a 62% loss of vision. It was the opinion of the medical experts testifying at that time that Malm would require neurological and psychiatric care for the rest of his life.

Subsequent to this order, Malm relocated to Sparks, Nevada. In 1984, with the full knowledge of the employer/carrier, he commenced working as a minimum-wage usher at a theatre where his father was employed as a projectionist. It was the testimony of the claims adjuster that the carrier viewed this employment as sheltered, and therefore sought no modification of the 1983 order based thereon. The carrier continued paying benefits until 1988, when a private investigator discovered that Malm had been employed since August 16, 1986 as a changemaker with a Reno, Nevada casino. The carrier did not thereafter seek further information regarding the exact nature of this employment, or the method by which Malm obtained it, but simply decided that the employment was non-sheltered and unilaterally terminated Malm's benefits.

The subsequent petition for modification sought a finding that Malm was no longer permanently totally disabled, and that the carrier was entitled to a credit against future benefits for benefits allegedly overpaid after August 16, 1986. The judge found, after a hearing, that Malm's employment at the casino after that date demonstrated an "ability to work on a regular basis in a job obtained in the open market and not created or modified for him," so that he could not thereafter be classified as permanently totally disabled. The judge further found, without elaboration, that the carrier was entitled to credit against any benefits due, or which became due, for benefits paid after August 16, 1986. Although the pre-trial stipulation indicated that the claimant was seeking attorney's fees, the judge did not address the issue in his order, nor did he reserve jurisdiction to consider fees at a later time.

Section 440.28, Florida Statutes (1975) provides that "upon the application of any party in interest, on the ground of a change in condition ... the [judge] may at any time prior to 2 years after the date of the last payment of compensation purrsuant to any compensation order ... review a compensation case and ... issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation" (emphasis supplied). A change in condition encompasses a change in wage earning capacity, even though the claimant's physical condition remains unchanged. Hall v. City of Jacksonville, 443 So.2d 326, 327 (Fla. 1st DCA 1983); Kurtz Plumbing and Heating, Inc. v. Lyons, 465 So.2d 635, 636 (Fla. 1st DCA 1985).

Here, Malm was found...