National Distillers v. Guthrie

• Decision Date: 08 August 1985
• Docket Number: Nos. BD-232,BA-376,s. BD-232
• Citation: 473 So.2d 806,10 Fla. L. Weekly 1890
• Court: Florida District Court of Appeals
• Parties: 10 Fla. L. Weekly 1890 NATIONAL DISTILLERS and Aetna Casualty & Surety Co., Appellants, v. Richard GUTHRIE, Appellee.

Page 806

473 So.2d 806

10 Fla. L. Weekly 1890

NATIONAL DISTILLERS and Aetna Casualty & Surety Co., Appellants, v. Richard GUTHRIE, Appellee.

Nos. BD-232, BA-376.

District Court of Appeal of Florida,

First District.

Aug. 8, 1985.

F. Bradley Hassell of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellants.

Bill McCabe of Shepherd, McCabe & Cooley, and Edward Hurt, of Hurt, Parrish & Dalton, Orlando, for appellee.

ZEHMER, Judge.

National Distillers and its workers' compensation carrier appeal two orders, entered June 19 and October 17, 1984, awarding claimant wage-loss benefits for several months during which he received no income from his employment as a real estate salesman. In several other months during the same year, claimant received commissions from real estate closings that greatly exceeded his average weekly wage rate. The employer and carrier raise two points: (1) Any lack of income in a particular month was not causally related to claimant's industrial injury and resulting disabilities; (2) Commissions paid at closing in any one month resulted from efforts expended over a number of months, so that all commissions should be deemed to have been earned over that extended period rather than in the particular months in which they were received. We affirm.

The employer and carrier previously appealed an order that awarded claimant wage-loss benefits for two months under very similar circumstances. National Distillers v. Guthrie, 443 So.2d 354 (Fla. 1st DCA 1983). In that case the wage-loss claim was defended in part on grounds that claimant's reduction in wages was not caused by his disabling injuries, but was the result of the "nature of the real estate business" which claimant had voluntarily undertaken. We approved the wage-loss award, holding that claimant's change in employment status was due to his industrial injury and that the question of causal relationship between the compensable injury and loss of wages was controlled by Regency Inn v. Johnson, 422 So.2d 870 (Fla. 1st DCA 1982).

Section 440.15(3)(b)2, Florida Statutes (1984 Supp.) (as amended by chapter 83-505, Laws of Florida), became effective June 30, 1983, and provides in part:

It shall also be the burden of the employee to show that his inability to obtain employment or to earn as much as he earned at the time of his industrial accident is due to physical limitation related to his accident and not because of economic conditions or the unavailability of employment.

Prior to this amendment, a claimant could establish a prima facie case that a reduction in earnings resulted from an industrial accident by showing a change in employment status due to a compensable injury and that he had engaged in an adequate and good faith attempt to secure employment commensurate with his abilities. Regency Inn v. Johnson, 422 So.2d 870. Construing the 1983 amendment to section 440.15(3)(b)2, we held in City of Clermont v. Rumph, 450 So.2d 573 (Fla. 1st DCA 1984), that the burden on the claimant is now "to present evidence, by job search when appropriate, which reasonably permits a conclusion that the compensable physical limitation was an element in the causal chain resulting in or contributing to the wage loss." 450 So.2d at 576. That amendment is procedural in nature and is applicable to determination of the wage loss issue on this appeal. City of Clermont v. Rumph, 450 So.2d 573; Miller v. Leon County Board of County Commissioners, 453 So.2d 492 (Fla. 1st DCA 1984).

The employer and carrier first argue that, since Regency Inn no longer applies in determining causal relationship, claimant failed to meet the more stringent burden of proof required by the amended statute as construed in City of Clermont v. Rumph. We conclude, however, that the evidence in the record was sufficient to establish the necessary causal relationship.

Claimant's initial burden under section 440.15(3)(b)2, as amended, was to present evidence which reasonably permitted the conclusion that claimant's physical limitation was an element in the causal chain resulting in or contributing to his wage loss. We note that the employer and carrier assisted claimant through rehabilitation benefits to train for the real estate job he now holds. We discussed at length in the first Guthrie opinion that claimant's industrial injury caused his displacement from his former employment, which had provided him a regular monthly income, because his compensable injuries left him incapable of performing his prior job. That fact has not changed. Claimant's continued good faith attempt to earn a living as a real estate salesman was not disputed. Thus, claimant's employment in the real estate business remained directly attributable to his compensable disability, and claimant's active pursuit of this new vocation supported the finding that his physical limitation was a contributing cause of his loss of income during certain months of the year. Carpenter's RV Service v. Eckert, 455 So.2d 590 (Fla. 1st DCA 1984). We hold that claimant, having established that his new vocation was attributable to his compensable injury, was not required to establish by additional evidence that a loss of earnings in a particular month was the direct result of his physical disabilities so long as he continued to diligently pursue his new occupation in the real estate business.

The more critical question raised by appellants is whether claimant's real estate commission income should be treated...