Mueller v. Searcy
| Decision Date | 18 August 1982 |
| Docket Number | No. AJ-27,AJ-27 |
| Citation | 418 So.2d 397 |
| Parties | C. F. MUELLER and the Hartford Insurance Group, Appellants, v. George R. SEARCY, Appellee. |
| Court | Florida District Court of Appeals |
Steven A. Rissman, of Cooper & Rissman, P. A., Orlando, for appellants.
Jesse F. Sparks, Orlando, for appellee.
Appellants employer/carrier appeal workers' compensation order of modification awarding claimant permanent total disability benefits and awarding claimant's attorney a $13,750 fee.
At issue are (1) whether the deputy commissioner, upon modification, may award permanent total disability benefits to claimant based upon his worsened and totally diminished wage earning capacity, and (2) whether the attorney's fee award is excessive.
Claimant Searcy injured his back in a compensable accident on January 3, 1972. Searcy filed a petition to modify a June 10, 1980, order which found that the claimant had sustained a 30% permanent physical impairment of the body as a whole. Following the modification hearing, the deputy found that the claimant's condition had worsened since the June 10, 1980, order and that claimant was now permanently and totally disabled based on a total diminution of wage earning capacity. Employer/carrier contend that the deputy has failed to find that the claimant's permanent impairment has changed, and that the deputy erred in finding claimant to be permanently and totally disabled. Employer/carrier also maintain the $13,750 attorney's fee is excessive.
There is sound basis for the deputy's finding that, after the initial order, claimant suffered a total diminution in his earning capacity. This finding is based on competent substantial evidence concerning claimant's unsuccessful attempts to find employment within his limitations as well as testimony from claimant's rehabilitation counselor. The deputy correctly concludes that the claimant had made a good faith effort to find employment within his physical limitations. Unless unsupported by competent substantial evidence, the credibility and sufficiency of this finding are factual determinations to be made by the deputy commissioner and will not be disturbed on appeal. City of Tampa v. Bartley, 413 So.2d 1280 (Fla.App. 1st DCA 1982).
In Fleshe v. Interstate Warehouse, 411 So.2d 919 (Fla. 1st DCA 1982), we held that a modification based on change in earning capacity is contemplated by section 440.28, Florida Statutes, and that such a change may be predicated on work search evidence accumulated after initial denial of wage earning capacity loss, where the initial denial was based on an inadequate work search or no work search. Although Fleshe involved a claim for wage earning capacity loss which had been initially denied because of an inadequate work search, the same logic applies where the employer/carrier would deny the claim for permanent disability benefits in excess of claimant's anatomical rating. The focus in Fleshe is not on the type of benefits being sought, but whether evidence of a change in earning capacity after the entry of the original compensation order is sufficient to support a modification pursuant to section 440.28.
We, therefore, affirm the award of permanent total disability benefits.
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...amount of the attorney's fee awarded as there is competent substantial evidence to support the amount awarded. See C.F. Mueller v. Searcy, 418 So.2d 397 (Fla. 1st DCA 1982). ROBERT P. SMITH, Jr., C.J., THOMPSON, J., dissents with opinion. THOMPSON, Judge, dissents. I would find the deputy e......
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...of fact were made by the deputy pursuant to the criteria set forth in section 440.34(1), Florida Statutes (1981). Mueller v. Searcy, 418 So.2d 397, 399 (Fla. 1st DCA 1982). In light of those findings, we hold the award not to be However, we recently reversed a portion of the deputy's award ......