Myers v. Holiday House
| Decision Date | 08 April 1991 |
| Docket Number | No. 90-1475,90-1475 |
| Citation | 578 So.2d 349,16 Fla. L. Weekly 1002 |
| Parties | Carol MYERS, Appellant, v. HOLIDAY HOUSE and Cigna Property & Casualty Company, Appellees. 578 So.2d 349, 16 Fla. L. Week. 1002 |
| Court | Florida District Court of Appeals |
Mark A. Zimmerman of Zimmerman, Paul & Bauer, DeLand, for appellant.
James M. Hess and Jamie McWilliams of Langston, Hess, Daniels & Murphy, P.A., Maitland, for appellees.
Claimant appeals a workers' compensation order by which she was awarded wage loss benefits reduced by deemed earnings of $280 per week. We find that employer/carrier did not present an evidentiary predicate below which would support the application of deemed earnings in accordance with section 440.15(3)(b)2, Florida Statutes (Supp.1984), and we therefore conclude that claimant's wage loss award should not be reduced by any deemed earnings during the period in question.
Claimant sustained an industrial injury when she slipped and fell to the floor while working as a waitress. She developed problems in her back and leg, and attempted to resume her waitressing duties upon being medically released for light duty work. But claimant found that she was unable to maintain this employment, as her back and leg problems are aggravated if she is on her feet for lengthy periods of time or if she engages in activities such as repetitive bending. Employer/carrier's claims adjuster referred claimant to a vocational placement service, but this produced no employment prospects and claimant began looking for a job on her own. She was paid workers' compensation benefits during this time, and eventually found employment at a medical laboratory. After an initial full-time training period in this endeavor, claimant continued to work at the medical laboratory for twenty to twenty-five hours per week. She testified that three other women also work at the lab, with two of them working "probably thirty, thirty-five" hours per week, and the other one working less. Claimant indicated that she has a flexible arrangement which allows her to work as few as ten hours some weeks, as her physical condition requires. She is paid a fixed salary of $810 per month regardless of the number of hours which she works.
We find that the judge below was entitled to conclude that claimant met her initial burden of proof for a wage loss award, as delineated in cases such as City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA), pet. for rev. den., 458 So.2d 271 (Fla.1984). While a part-time work effort may sometimes constitute a voluntary limitation of earnings, see e.g., Hillsborough County School Bd. v. Fliter, 539 So.2d 1145 (Fla. 1st DCA 1989), once the claimant's initial burden is satisfied it becomes incumbent upon the employer/carrier to establish the necessary elements for the application of deemed earnings, pursuant to...
To continue reading
Request your trial
-
Clairson Intern. v. White
...has the burden to establish that the claimant is voluntarily limiting his income by obtaining part-time employment. Myers v. Holiday House, 578 So.2d 349 (Fla. 1st DCA 1991); Walker v. Heavy Machinery Tool and Transporters, Inc., 576 So.2d 1363 (Fla. 1st DCA 1991). In order to meet the init......